HR Professionals of Greater Memphis- Vol. 1:1

www.HRprosMemphis.com

Volume 1 : Issue 1

ProposedNLRB

Election Rules

JUDY BELLAppointed toState Position

NewADARevisions

New Laws

Guns in theWorkplace

Diversity &Leadership

EMPLOYEEPrivacy Claims

SHRM-Memphis 2011Board of Directors

PremiereIssue

001 COVER:Layout 1 8/26/11 1:31 PM Page 1

The largest law firm in the Mid-South that devotes its prac�ce to represen�ng management

in all areas of labor rela�ons, employment law and human resource consul�ng.

Kiesewe�er Wise Kaplan Prather, PLC

3725 Champion Hills Drive • Suite 3000 • Memphis, Tennessee • 38125 • 901-795-6695

www.kiesewe�erwise.comCer�fica�on as a labor and employment specialist is not currently available in Tennessee.

002 KW ad:Layout 1 8/29/11 11:09 AM Page 1

www.HRprosMemphis.com 3

Features4 Letter from the Editor

5 Profile Judy Bell

9 Proposed NLRB Election RulesThe Time to Act is Now!

12 Who’s Who?

14 the HR Scene and Events Calendar

18 Guns in the WorkplaceTennessee’s New Gun Law

Departments6 Leadership

Digger Phelps on Leadership

11 EEOC UpdateNew ADA Regulations

17 Employee RelationsManaging Military Employees

Effectively

20 BenefitsHealth Care Reform Update

21 HR EthicsEthics CEG on Workplace

Romance Policies

25 Employee Privacy Claims

Next IssueEmployment Law

Tennessee SHRM Conference in Chattanooga

Columns13 SHRM-Memphis Bulletin

Letter from President,

Austin Baker

22 Small Biz Best PracticesFrom Hire to Fire

24 DiversityUnderstanding Generational

Differences

Industry News8 Job Postings

13 New & Announcements

16 SHRM Foundation


Editor

Cynthia Y. Thompson, MBA, SPHR

Publisher

The Thompson Firm LLC

Art Direction

Brantley Bowden & Co.

Contributing Photographers

Skipworth

Contributing Writers

V. Latosha Dexter, SPHR

Charles L. Cavagnaro, Jr

Jonathan C. Hancock

Whitney M. Harmon

Tanja L.Thompson

Board of Advisors

Austin Baker

Jonathan C. Hancock

Ross Harris, CFA, CPA

Diane M. Heyman, SPHR

John E. Megley, III, Ph.D

Terri Murphy

Susan Nieman

Robert Pipkin

Michael R. Ryan, Ph.D

Contact HR Professionals of Greater Memphis:

To submit a letter to the editor, suggest an idea for an article, notify

us of a special event, promotion, announcement, new product or

service, or obtain information on becoming a contributor, visit our

website at www.HRprosMemphis.com. We do not accept

unsolicited manuscripts or articles. All manuscripts and photos must

be submitted by email to [email protected]. Editorial

content does not necessarily reflect the opinions of the publisher, nor

can the publisher be held responsible for errors.

HR Professionals Of Greater Memphis Magazine is published every

month, 12 times a year by The Thompson Firm, LLC. Reproduction

of any photographs, articles, artwork or copy prepared by the

magazine or the contributors is strictly prohibited without prior written

permission of the Publisher. All information is deemed to be reliable,

but not guaranteed to be accurate, and subject to change without

notice. HR Professionals Of Greater Memphis Magazine, its

contributors or advertisers within are not responsible for

misinformation, misprints, omissions or typographical errors.

© 2011 The Thompson Firm

This publication is pledged to the spirit and letter

of Equal Opportunity Law.

stay current

FollowUs!

Contentsthe Premiere Issue

003 Contents-masthead:Layout 1 8/29/11 11:06 AM Page 1

4 www.HRprosMemphis.com

Welcome to the Premiere Issue of HR Professionals of Greater Memphis.

I am so excited about bringing this first-of-a-kind publication to you! The mission of the magazine is to

serve you, the HR professional, and advance the HR profession in the Greater Memphis area. We are

partners with SHRM-Memphis as the voice of the HR community. I am so proud to be a member of one of

the largest SHRM Chapters in the country, as well as the SHRM international organization with over 250,000

members. As a past president of SHRM-Memphis and founder of the SHRM Executive Roundtable in

Memphis, I am aware of the issues that impact our profession and our community. We will be your advocate

on state and national legislation affecting our workplace and

our profession.

We will also showcase the best of the best in our profession

from Memphis and the surrounding communities with profiles

of a key HR professional in each issue. You will also meet a

member of the SHRM-Memphis Board of Directors each

month. In addition, there will be editorials on topics of

importance to you such as benefits, compensation, employee

relations, HR technology, performance and training. We will

also bring you articles about diversity, ethics, and leadership,

which will inspire you.

It has been an exhilarating month as I have visited many

organizations and attended many group meetings in our

community searching for the current hot buttons that are

keeping you awake at night. I have had the pleasure of meeting

and talking to many business and community leaders who

have both challenged and inspired me. I have never been more

proud to be a member of the human resources profession as

I experienced the sincere respect these leaders have for the

work we do.

I have to agree with Coach “Digger” Phelps, former head basketball coach

at Notre Dame, who said on his recent visit to our city that Memphis is

experiencing a cultural, economic, and social renaissance. I hope you enjoy

this premiere edition and that you too will be challenged and inspired as I

have been. What a wonderful time to be an HR professional in greater

Memphis and to be a part of this renaissance!

Editor’s LetterA new era in Human Resources

Cynthia Y. Thompson, MBA, SPHR

Editor


Volume 1 : Issue 1

ProposedNLRB

Election Rules

JUDY BELLAppointed toState Position

NewADARevisions

New Laws

Guns in theWorkplace

Diversity &Leadership

EMPLOYEEPrivacy Claims

SHRM-Memphis 2011Board of Directors

PremiereIssue

004 Editors Letter:Layout 1 8/26/11 10:38 AM Page 1


Judy began her recent stint as a Senior Consultant for Inner ActiveConsulting in 2010where she was soon leading personal developmenttraining, facilitating the Phoenix Seminar, and speaking on the topic ofemotional quotient.She has always been involved in SHRM and served as Chair of theState Conference Committee in 1995. She was the recipient of theProfessional Excellence Award in HR for the state of Tennessee in2001, and was elected President of SHRM-Memphis in 2002. Sheserved on the charter committee that founded the SHRM ExecutiveRoundtable in 2006.

Judy Bell is more recently known as the vision behind the SHRM-Memphis' wildly successful Ethics Career Emphasis Group (CEG)which meets quarterly to discuss ethical leadership in business, andleaves the leadership of the group in very capable hands with her rockstar committee. Judy has lead SHRM-Memphis in so many ways andwe are so proud of hermany achievements. Beyond SHRM-Memphis,Judy has earned many other accolades including: CongressionalRecognition for Community Service in 2001, Selected as one of "50Women Who Make a Di�erence" by Memphis Woman Magazine in2002, Named Woman of the Year by �e Leukemia & LymphomaSociety in 2003, and awarded the Smart Award byGirls Inc,Memphisin 2008. Judy has also served in several volunteer roles in stategovernment, among them was Chairperson for the WorkforceEmployer Outreach Committee in Shelby County for the past �veyears. Its mission is to provide a direct link between Tennessee’semployer community and the Commissioner of the Department ofLabor andWorkforce Development.

It should have come as no surprise to Judy when she received the callfrom Commissioner Davis asking her to serve as the Head of HumanResources for theDepartment of Labor andWorkforceDevelopment.

We extend heartfelt congratulations to Judy as she begins her newcareer with the state.We are very proud of her many years of service tothe HR community in Memphis and we know that Judy Bell willcontinue her personal mission of helping others thrive and succeed inthe workplace - on a state level now. ■

Chances are if you are a human resource professional in greaterMemphis, you have been touched by Judy Bell in some way. Judy is aservant leader who has worked in the human resources industry formore than 30 years. But, thenwho is counting? It has been said, “If you

enjoy your work, you willnever work a day in yourlife”. Judy certainly lovesher work, �nding joy inhelping others succeed.

Judy, a past-president ofSHRM-Memphis, hasbeen appointed to thedistinguished position ofAdministrator with theState of TNDepartment ofLabor and WorkforceDevelopment. �ere shewill direct HR for adepartment of more than

2,000 employees. She took her new post on June 1 and serves underfellow Memphian Karla Davis who was hand-picked by GovernorHaslam in January to be the Commissioner.

Judy Bell grew up inMemphis with the expectation that she would bea teacher. A�er all, her dad was principal of Craigmont High Schooland her mom was a teacher. So, she began her journey to HR atMemphis State University, as it was known then, and was studentteaching at Harding by age 19. It did not take her long to �gure outthis was not her calling. She dropped out for “just one year”, and got ajob at Union Planters Bank. She ended up staying there for 17 yearswhere she became manager of Employment Services.

Following her banking tenure, Judy became manager of EmploymentServices at Delta Life and Annuity and was there for 3 ½ years. Shewas then recruited byMATCU in 1997 and was quickly promoted tosupervise all sta�ng and compensation, employee relations,compliance, and training as well as risk management, asset recovery,and liability insurance; rising to the C-Suite as Chief AdministrativeO�cer and second in command to the CEO.

Appointed to State Position

on the cover

JUDYW. BELL

{finding joy} in helping others succeed

005 Judy Bell:Layout 1 8/26/11 10:44 AM Page 1


stated that Memphis has always been the

gateway to the South. "Speaking as an

outsider, you don't know the power you have

here. I love coming here because of who you

are andwhat you believe in, and I think you're

poised to be the gateway not just of the South,

but of the United States."

Memphis is experiencing a cultural,

economic and social renaissance according to

Phelps. He cited the recent commitments by

several companies to come to Memphis and

create jobs, the recent success of theGrizzlies,

and President Obama’s visit to Booker T.

WashingtonHigh School as examples. Phelps

said Memphians must work hand-in-hand to

provide stronger educational opportunities

for our young people.

University of Memphis head basketball

coach, Josh Pastner, said. "His message about

mentor ing should be a challenge to all of us to

get involved and make this a better

community." ■

Lipscomb & PittsBreakfast Club

Featured “Digger”Phelps

Before a crowd of some 400 business and

community leaders, Richard “Digger”

Phelps, former head basketball coach at

Nortre Dame, challenged us to work hand-

in-hand to provide stronger educational

opportunities for the young people of

Memphis. "If we can save kids, then I'm not

worried about families. They'll be OK,"

Phelps said. "You've got to come together as a team in Memphis and realize you're a sleeping

giant. Giving your money is fine, but you've also got to give of yourself and mentor these

children.When people give the excuse that they don't have time to volunteer at least an hour a

week to mentor a kid, I say, 'Oh, really? Well guess what? Skip lunch one day if that's what it

takes.Make the time.' "

Coach Phelps believes that Memphis’ potential is as mighty as the Mississippi River, and

Speaker at the recent Lipscomb and Pitts

Breakfast held at the Botanic Gardens. This is

the largest gathering of business leaders and

decision makers in the Memphis community.

LEADERSHIP

(JWF CBDL�4FSWF BT B .FOUPS

"SF ZPV XJMMJOHUP HP UIFFYUSB NJMF

$POTJEFS TFSWJOH BT B NFOUPS JO UIF

6OJWFSTJUZ PG .FNQIJT 'PHFMNBO $PMMFHF PG

#VTJOFTT BOE &DPOPNJDT .*-& -FBEFSTIJQ

.FOUPSJOH 1SPHSBN� :PV`MM IBWF BO

PQQPSUVOJUZ UP IFMQ B IJHI BCJMJUZ DPMMFHF

TUVEFOU USBOTJUJPO JOUP CFJOH B CVTJOFTT

QSPGFTTJPOBM BOE GVUVSF .FNQIJT DPNNVOJUZ

MFBEFS� :PV`MM GBDJMJUBUF ZPVS PXO QFSTPOBM

MFBEFSTIJQ OFUXPSLJOH BOE NFOUPSJOH

EFWFMPQNFOU� "OE ZPV DBO IFMQ EFWFMPQ

ZPVS PSHBOJ[BUJPO CZ SFDSVJUJOH UIF CFTU

UBMFOU GSPN UIF $PMMFHF PG #VTJOFTT GPS ZPVS

KPC BOE JOUFSOTIJQ QPTJUJPOT�

..FNQIJT�**OTUJUVUF�GPS�--FBEFSTIJQ�&&EVDBUJPO

.*-&�-FBEFSTIJQ�.FOUPSJOH�1SPHSBN

$POUBDU��%S��#PC�5BZMPS �%JSFDUPS�c��

.*-&!NFNQIJT�FEV

006 Phelps/half:Layout 1 8/26/11 10:45 AM Page 1


007 Lipscomb Pitts:Layout 1 8/26/11 12:53 PM Page 1


Sr. Human Resource Generalist (Compensation)Regional Medical Center at Memphis

Human Resources ManagerGreat American Steamboat Company

Human Resources CoordinatorMitsubishi Electric Power Products, Inc.

Human Resources TrainerTechnicolor

Human Resources RepresentativeTechnicolor

Human Resources ManagerTechnicolor

Compensation AnalystMethodist Le Bonheur Healthcare

Director, Human ResourcesMethodist Le Bonheur Healthcare

Memphis Regional Human Resources ManagerGuardian Community Living, LLC

Human Resources ManagerEvergreen Packaging

Senior Corporate RecruiterStrategetics Technology, Inc.,

Recruiting SpecialistUT Medical Group

SHRM-MemphisJOBPostings

SSeennaattoorr LLaammaarr AAlleexxaannddeerr ––“The NLRB seems determined to make the jobs

picture worse. Encouraging rushed elections will

incentivize employers to send jobs overseas

instead of creating them at home.”

Know where they stand.On the NLRB’s recent proposal to shorten the time it takes to

have union-organizing elections within companies:

ADVOCACY

––SSeennaattoorr BBoobb CCoorrkkeerr“I firmly believe the National Labor Relations Board (NLRB)

has completely overstepped its bounds in recent months, not

only with the rulings regarding so-called “snap” or “quick”

elections and disclosure requirements, but with their well-

publicized actions against Boeing. Tennessee is a proud right-

to-work state, and it is shocking to me that NLRB would

attempt to legally block a company from opening a new facility in a right-to-work state.

For this reason, I have joined with Senator Alexander and others as a co-sponsor of

S.964, the Job Protection Act, which would prevent NLRB from taking this sort of action

against Boeing or any other company. S.964 is currently before the Senate Health,

Education, Labor, and Pensions Committee. In the meantime, NLRB’s complaint against

Boeing is moving through the administrative court system.

More recently, NLRB published new proposed rules that would, as many

have argued, put major elements of the Employee Free Choice Act (EFCA) into place

without Congressional approval. I have opposed EFCA since I was elected to the

Senate, and have both voted against the bill and co-sponsored legislation in direct

opposition to it. Both proposed rules would greatly impede the rights of employers to

effectively and legally communicate with their employees about their workplace.”

RReepprreesseennttaattiivvee MMaarrsshhaa BBllaacckkbbuurrnn ––“The NLRB’s recent proposal to rush union elections

is purely political. What our country needs is

economic growth, not job-crushing proposals that

will push jobs overseas.”

008 Vaco/Job postings:Layout 1 8/26/11 12:55 PM Page 1


Content of Proposed Rules –Advanced Technology, But Not The Age of

EnlightenmentSeveral of the Proposed Rules provide for more technologicallyadvanced communication. First, the Proposed Rules provide thatelection petitions may be �led electronically with the Board.

SECRET

BALLOT

The Time to Act is Now!

ProposedNLRB Election Rules

“Make no mistake, the principal purpose for this

radical manipulation of our election process is to

minimize, or rather, to effectively eviscerate an

employer’s legitimate opportunity to express its

views about collective bargaining.”

Employers also must submit a list of the eligible voters, commonlyreferred to as the Excelsior list, in electronic format to the Boardwithintwowork days (currently employers have seven days) from the time theelection is directed. Under today’s law, this voter list must only containthe names and home addresses of eligible voters. But the ProposedRules would require employers to also include employee telephonenumbers and email addresses. Notably, the Proposed Rules do notclarify whether the email addresses are work or personal addresses.While providing work email addresses causes concerns about the e�ectof applicable email usage and no solicitation policies, production ofpersonal email addresses and home telephone numbers is equallyproblematic because it may infringe on employee privacy.

�e Proposed Rules also shorten the time that an employer hasbetween the petition and any pre-election hearing from 14 days to 7days. �e Proposed Rules further require an employer to submit aStatement of Position before the pre-election hearing explaining itsposition on (1) whether the Board has jurisdiction, (2) whether theemployer agrees the proposed unit is appropriate, (3) if the employerdoes not agree to the unit, its contention and description of the mostsimilar unit it concedes is appropriate, (4) individuals’ whose eligibilitythe employer intends to contest and the basis for the contention, (5)any election bar, and (6) the employer’s position regarding the type,date, time, and location of the election. Furthermore, under theProposed Rules, the employer is precluded from raising additionalissues that contest the appropriateness of the unit and/or the eligibilityof individuals not raised in the Statement of Position.

On June 21, 2011, the National Labor Relations Board (NLRB orBoard), proposed new procedural rules (the Proposed Rules) thatwould substantially a�ect employers’ (and correspondingly employees’)substantive rights regarding NLRB secret ballot elections. Althoughthe Board claims the Proposed Rules are simply intended to streamlinethe election process, reduce unnecessary litigation, and utilize moreadvanced communication technology, commentators at the Board’sJuly 18-19, 2011 open forum on the Proposed Rules highlighted thatthe Board’s true purpose is to limit an employer’s role in the electionprocess and increase union representation. Consistent with theconcerns of employers and business groups, sole Republican BoardMember Brian Hayes dissented to the Proposed Rules, andunderscored the majority’s real motivation in proposing these rules.Hayes commented as follows,

009 NRLB:Layout 1 8/26/11 12:56 PM Page 1


Additionally, the Proposed Rules limit theBoard’s review of RegionalDirector decisions.The Proposed Rules entirely eliminate pre-election review by the Board. Thus, partiesmust seek review of Regional Directordecisions in a single, post-election request.Under the current rules, the parties have aright to request Board review of a RegionalDirector’s pre-election decision within 14days. Although the Board’s review of pre-election decisions is discretionary, the currentrules discourage Regional Directors fromscheduling an election until 25-30 days aftertheir decision was issued where a request forreview has been filed, so that the Board hastime to consider any request. The ProposedRules also give the Board discretion to denyreview of post-election disputes, therebyeliminating any automatic right that theparties previously had to Board review.

The Practical Effect –

The Times They Are A ChangingAlthough the Proposed Rules do notsubstantively restrict an employer’s legal rightto communicate with employees pre-election,the practical consequence of the ProposedRules is that employers will have almost notime to communicate their position. Section8(c) of the National Labor Relations Actprotects an employers’ right to communicatewith employees so long as thecommunications “do not contain a threat ofreprisal or force or promise of benefits.”Although the Proposed Rules are in large partprocedural, their combined effect raises aserious question as to whether the resultingshortened pre-election time deprives

Another significant change in the

Proposed Rules is that employers will

generally not be permitted to litigate pre-

election issues regarding individuals’

eligibility to vote in the election unless the

issues involve 20 percent or more of the

proposed unit. The most significant

practical effect of this change is that

more often during elections there will be

uncertainty as to whether particular

individuals are eligible voters or

supervisors. The failure to identify

statutory supervisors on the front end not

only limits effective communication with

employees, but also creates the

increased potential for unfair labor

practice charges and added post-

election litigation or even rerun elections.

employers of their substantive Section 8(c)rights. As critics of the Proposed Rules havenoted, employers must have the opportunityto speak to be able to effectively exercise theirrights under the Act. The right, without theability to exercise it, eviscerates that right.

There is no doubt that the Board’s ProposedRules, if effectuated, would radically reducethe number of days from petition to election.Today, the median time from petition toelection is around 40 days. Board MemberHayes suspects that the timeframe under theProposed Rules would be 10-21 days. Theseso-called “quickie” elections do little toprotect employee rights and instead are aimedat eliminating employer communicationwithemployees. Make no mistake, labor’spreference is that the employee electorate isnot a fully informed electorate, but rather thatthey hear only the union’s side of the story.That is, of course, the purpose of popularunion neutrality agreements and theproposed Employee Free Choice Act. TheBoard’s Proposed Rules would move us onegiant step closer to that reality of eliminatingemployer communication during a unionorganizing campaign. The bottom line is theProposed Rules are not about protectingemployees’ rights, but are about securing newunion members at the expense of employers’and employees’ rights.

Tanja L. ThompsonPartner, Kiesewetter Wise Kaplan

Prather, PLC

NLRBElection Rules

The Proposed Rules

also shorten the

time that an

employer has

between the

petition and any

pre-election

hearing from

14 days to

7 days.

Preparing for theProposed Changes –

The Time to Act Is NowBecause of the likelihood of drasticallyreduced campaigns, employers are advised to

act now to preserve their union-freeworkplaces. Waiting until an election petitionis filed to take action may be too late.Employees must act now to establish andmaintain positive employee morale.Tolerating unfair treatment, poorcommunication, or lack of appreciation ofemployees (even if in the face of goodproduction or good customer service) likelywill result in union success under theProposed Rules. It also would behooveemployers to analyze potential voter unitissues, and particularly Section 2(11)supervisory status in the workplace. Waitinguntil a petition is filed to determine who theemployer’s “supervisors” and resultingcommunicators will be in a campaignsimilarly will be too late. Indeed, the only surechance of remaining union-free under theProposed Rules will be avoiding the petitionin the first place – by committing to positiveemployee morale and establishing a strongtrust bond with employees. If one of yourbusiness goals is to remain union-free, takeheed and act now. ■

010 NRLB L:Layout 1 8/29/11 11:14 AM Page 1


Businesses face major new compliancechallenges as a result of recently implementedchanges in the Americans withDisability Act(ADA).

�e ADA was amended in 2009 with thegoal of dramatically expanding the populationof employees considered “disabled.” �eregulations implementing the amendmentswent into e�ect on May 24. By the EEOC’sown estimates, an additional 12 to 38.4million employees became “disabled” at thestroke of midnight onMay 23.

�ese new regulations reiterate one pointover and over again: �e purpose of theamended statute and the newly publishedregulations is to make it easier for employeesto establish a disability. Although the basicde�nition of disability is retained, the termsnecessary to determining of whether adisability exists are substantially expanded.�e �nal regulations clearly emphasize that:

• “Substantially limits" is to be construed

broadly, to the maximum extent allowable

under the law.

• "Substantially limits" does not need to

prevent or severely or significantly restrict a

major life activity.

• The determination of whether an

impairment substantially limits a major life

activity should not be extensive and the

individualized assessment to determine if

someone is substantially limited requires a

degree of functional limitation "lower" than

the standard before the enactment of the

ADAAA.

• The ameliorative effect of mitigating

measures, other than ordinary eyeglasses or

contact lenses, should not be considered in

determining whether an impairment

"substantially limits" a major life activity.

• An episodic or in remission impairment

meets the definition of disability if it would

substantially limit a major life activity when

active.

• The effects of an impairment lasting or

expected to last fewer than six months can

be substantially limiting.

In addition to the inclusion of “majorbodily functions” as a “major life activity”, theregulations add activities such as interactingwith others. “Regarded as” has also beenbroadened and requires no showing ofsubstantial limitation by the employee.Further, the regulations state that the“regarded as” prong is the primarymethod forbringing a claim when an accommodationrequest is not at issue.

So what do these changes mean foremployers? Basically now everyone isdisabled. An employer should no longerfocus on whether a disability exists because itlikely does. �e focus now is on the whetherthe disability needs to be reasonablyaccommodated and/or whether the employeris administering employment actions fairly.Below are some tips for the prudent employerto limit their liability:

• Review your job descriptions to ensure

they accurately reflect the “essential” job

functions.

• If you require post-offer medical

examinations, review your processes and

make sure that automatic disqualification

does not occur based on specific medical

conditions.

• Do not spend a lot of time trying to

determine if an employee is “disabled”. You

should reevaluate your procedure for

requesting medical information and make

sure that it is not unduly burdensome for an

employee to establish that she has a

disability. While you may still make inquiries,

do not engage in extensive analysis.

• Understand the reasonable

accommodation process. Because little

time will be spent determining whether a

qualifying disability exists, the employer must

show that it engaged in the interactive

process, including having policies and

procedures in place to notify employees of

accommodation processes, maintaining

communication with employees, and

documenting employer efforts. In the past,

employers were successful in challenging

claims based on whether a “disability”

existed. However, in the future the focus will

likely be on whether an employer has met its

obligation to accommodate.

• Forget about mitigating measures (other

than glasses or contact lenses). The

employee having available medication or a

hearing aid dramatically improving their

hearing is irrelevant.

• Understand the interaction between

FMLA, workers’ compensation and the

ADA. An FMLA “serious health condition” or

workers’ compensation injury now possibly

is also a “disability” under the ADA.

• Review your medical leave/termination

policies and practices. Permitting an

employee one (1) year of leave and then

following up with automatic termination will

become an improper failure to engage in an

individualized assessment or consideration

of reasonable accommodation options.

• Train your front line. Make sure that your

front line supervisors and managers know

that the ADA exists and can recognize

situations that potentially trigger a response

on your part.

In its preliminary regulation impactanalysis, the EEOC estimated that theresulting increase in reasonableaccommodation requests could range from 2million to 6.1 million. As a result of thesechanges, operating costs are almost certain toincrease for most employers with a largeworkforce. However, with sound policies andprocedures in place, employers can limit theirexposure to ADA claims and better defendagainst such claims if they are �led. ■

NEWADAREGULATIONS

Latosha Dexter, SPHR

Attorney,

Rainey Kizer Reviere & Bell, PLC

B Y L A T O S H A D E X T E R

011 ADA regs:Layout 1 8/29/11 11:08 AM Page 1


President

Austin Baker

President of HRO Partners

and Owner, Owen Brennan's

Restaurant

Past President

Deneen Al-Sadi, PHR

Manager of Employment

City of Memphis

Secretary

Charlene Mitchell, PHR

Human Resource Manager

Huey’s Inc.

Not Pictured: Vice President-Communications, Ted Archdeacon, SPHR: Human Resource Manager,Brother Industries (U.S.A.), Inc.

Vice President-

Communications

Rolana Bourland

Human Resource Generalist

Cummins Mid-South

Vice President-Membership

Yvette Brooks, PHR

Director, HR Analytics &

Technology

Methodist Le Bonheur

Healthcare

Vice President-Membership

Audrey Darnell, PHR

Human Resources

Representative

FedEx Trade Networks

Vice President-Programs

Julieanna Walker, PHR

Workforce Development

Consultant

Vice President-Hospitality

Lisa May

Vice President, Marketing

Data Facts, Inc.

Executive Roundtable Chair

Diane Heyman, SPHR

Global Head of

Compensation and Benefits

Hilton Worldwide

memphis

2011 Board of Directors

012 Board:Layout 1 8/26/11 1:37 PM Page 1


Letter from the President2011 PRESIDENT OF SHRM-MEMPHIS

SHRM-MEMPHISBULLETIN

EMPLOYMENT LAW

Tennessee SHRM Conference in Chattanooga

BENEFITS & HEALTH CARE REFORM

Greater Memphis Benefits Council andHR Professionals in Healthcare

COMPENSATION/PERFORMANCE MANAGEMENT

Mid-South Compensation Association andHR Professionals as Compensation Analysts

STAFFING AND RECRUITING

Corporate Recruiters and NWMS SHRMChapter

PAYROLL AND HRIS TECHNOLOGY

HR Professionals as Payroll Managers of Top 10Companies

EMPLOYEE DEVELOPMENT AND TRAINING

Employee Development and Training ManagersNEA SHRM Chapter & American Society ofTraining and Development

DIVERSITY

Diversity Leaders in Greater Memphis and HRProfessionals in the Public Sector

RETIREMENT PLANNING & 401(K)S

HR Consultants & HR Professionals inRetirement Planning

HR IN FINANCE

HR Professionals in Financial Institutions

HR IN EDUCATION

HR Programs in Local Universities and HRProfessionals in Education

LEADERSHIP

HR Professionals in Publicly Traded Companies

ASSESSMENTS & BACKGROUND CHECKS

HR Professionals as Employment Managers

EMPLOYMENT LAW

HR Professionals as Employee RelationsManagers

BENEFITS AND HEALTH CARE REFORM

HR Professionals as Benefits Managers

COMPENSATION/PERFORMANCE MANAGEMENT

HR Professionals as Compensation Analysts

Austin BakerSHRM-Memphis

2011 President

[email protected]

www.shrm-memphis.org

Dear HR Professional,

SHRM-Memphis would like to work with you to help you accomplish your professional and

community improvement goals. I am so happy to have the opportunity to serve as the

president of SHRM-Memphis this year, we are having a great time and we are growing our

footprint in the community through outstanding partnerships with HR professionals and

organizations in the Memphis area. If you are not a member, please reach out so that we can

show you how you can grow with us. If you are a member and want to get more connected,

you could not have picked a better time to do it.

We are one of the largest associations in the Memphis metropolitan area! We see a huge

opportunity to marshal our resources toward some amazing things for you and for our

community. In January we held a Board Vision retreat and I wish you could have been there to

experience the passion that our volunteers have for helping you succeed in HR. That is why we

are all here right; to succeed in our profession, to be among friends who have the same goals

and of course to have a great time doing it.

This year we are setting out on a new course to do three things. First, we want to reconnect to

you! This year is about thanking you for your service and membership. We want to celebrate

your professional successes and even provide an outlet to work on your greatest challenges.

We work every day as volunteers to serve you the member and to advance the profession of

HR. We want you to be engaged in SHRM-Memphis in a powerfully authentic way. After all,

this is your professional home base and you are among friends.

The second thing we want to do is to help make the ground in which we farm more fruitful.

That is the community that we live in and our talent pool from which we recruit. Does this seem

like a tall order? I don’t think it is considering that we are probably the largest metropolitan

organization in existence and we have the support of many organizations that we will be

partnering with us going forward. This goal will require data, strategy, patience, vision and

passion and we are up to the challenge. In 2011 and beyond we are poised to make

substantive changes in the community. We can help our community be better; after all we do

this for our own organizations! Why can’t we do it for a metropolitan area?

The third major goal is to position SHRM-Memphis as the voice of HR in Memphis! That starts

with you speaking out and us listening, but it also comes from us amplifying your voice. You

have the mic at SHRM Memphis and we want you to speak out. Speak out about state and

national legislation that affects our workplaces. Speak out about how we can improve the

community that we live and work, and speak out about HR’s future role in organizations and

where we are headed as a profession. We are forming key alliances with Mayor Wharton and

Mayor Luttrell’s offices as well as the Chambers and many other very important organizations.

Through SHRM-Memphis you have a “seat at the table” and these organizations have a ready

ear to help us move HR in Memphis forward.

We are bringing you more meetings, better speakers, more socials, really cool community

building opportunities and a fun environment to make it happen. So what are you waiting for?

Get connected and attend an event so that you can be a part of something great today!

Sincerely,

GREATER MEMPHIS

NEWS&ANNOUNCEMENTS

AWARDS | PROMOTIONS | NEWS | RECOGNITIONS

Send us your news:

Does your company have news to share? E-mail

employee recognitions, Business Calendar items and

Announcements to [email protected]. Head-

and-shoulders photo submissions are welcomed, but

should be high-resolution quality (300dpi). Calendar

announcements should be submitted three weeks prior

to the date of the event.

For advertising information contact:

HR Professionals of Greater Memphis,

[email protected] content does not necessarily reflect the opinions of the

publisher, nor can the publisher be held responsible for errors.

EDITORIAL CALENDAR

Look for these topicsin future issues.Your Volume of HR Expertise.

013 Pres Baker/announce/buerq:Layout 1 8/26/11 1:38 PM Page 1

Women on the Move Meeting(L-R) Ginna Word with Vaco Resources, Shelley Baur, author of Integrity-Based

Communications; and Lindsey Roberts with Vaco Staffing at the recent women on

the Move meeting at the Crescent Club where Shelley was speaker.

Lipscomb & Pitts Breakfast Club

(L-R) Kathy Tuberville with University of Memphis Office of Academic Internships

and Kevin Gallagher, Ph.D graduate assistant, and David Allen, Ph.D, at the

University of Memphis display outside Hardin Hall at the Botanic Garden.

Hayley R. Isaac, Associate Director of Christian Brothers University's

MBA Program and Julie Hagar, Administrator to MBA Programs at

the Lipscomb & Pitts Breakfast Club Meeting at Botanic Garden.

L-R Attorneys John Simmons and Matthew Gallagher with

Kisewetter Wise & Kaplan hosted HR Bytes in August.

They discussed the hiring process.

Lunch ‘N LearnJohn Duncan, VP of Membership Development for the

Greater Memphis Chamber of Commerce and Pat-Kerr

Tigrett at the Lunch 'N Learn held at the Ron Terry Center

at First Horizon Bank.

the

SCENE

Attorneys Brent Siler and Joann

Coston-Holloway facilitated a recent

Breakfast Briefing on FMLA.

Attorneys Emily Walker & Jay Ebelhar

spoke on Employee Privacy Claims at

a recent Breakfast Briefing.

Baker Donelson Breakfast Briefing


014 HRscene LEFT:Layout 1 8/29/11 11:05 AM Page 1

Barbara Richman and Joel Myers at

the Greater Memphis Chamber of

Commerce Small Business Council

Breakfast at the Racquet Club.

Jeremy Park, Director of Communications with

Lipscomb & Pitts facilitates a recent Female

Business Leaders Luncheon at the Napa Café.

Pam Green, SHRM's Chief U.S.

Membership Officer was the guest

speaker at the August SHRM-Memphis

luncheon meeting at the University of

Memphis Holiday Inn. She spoke on

"The Future of HR - What's next for the

Profession?"

7

10

13

16

19

22

25

5

8

11

14

17

20

23

26

28

6

9

12

15

18

21

24

27

29

30

31

1

3

6

2

4

5

m

tu

th

su

w

sa

tu

f

m

th

w

f

m

th

su

w

sa

tu

f

su

sa

tu

f

m

th

su

w

sa

m

tu

w

th

f

9.14.11Building Cases For & Against

Social Media (Seminar)8:30a-10:00a at University of

Memphis Theatre

9.14.11Kick-off Meeting for

University of Memphis SHRMStudent Chapter 4:30 PM –

6:00 PM at the Wilson School(Holiday Inn) Classroom

Building Room 129

9.15.11Baker Donelson Breakfast

Briefing at 165 Madison Ave.8:15 AM – 9:30 AM

9.22.11Reception with Richard Sheirer hosted

by Baptist 5:30p-7:30p at the Children’sMuseum of Memphis

9.21-23.11SHRM TN State Conference in

Chattanooga

9.20.11SHRM-Memphis HRO SeniorExecutive Forum with CFOs7 AM – 11AM at The Holiday

Inn at the University ofMemphis

9.22.11Mid-South Compensation Association

11:30 AM – 1:00 PM At The Holiday Innat the University of Memphis

9.25.11Dress for Success with James Davis

8:00a-9:30a at James Davis

9.27.11Leading Tomorrow Lunch Series hostedby U of M 12p-1:30p at the U of M. Nocharge to attend. 10 business leaders

and 10 students talking about leadershipand the job market.

9.28.11SHRM-Memphis Compensation and

Benefits CEG Meeting 7:30 AM – 10:00AM at the Holiday Inn at the University

of Memphis

Northwest MS Chapter Meeting 11:30AM -1:00 PM

At the Baptist Memorial HospitalDeSoto Room

10.6.11

Lisa Lichtertman Leach and Nicole H. Bermel,

facilitated the HR Lunch Bytes seminar on

revisions in ADA regulations.

Recent ChamberMixer inCollierville at the Avenue Crossing

CALENDAR

of EVENTS

L-R Dr. James Posner, Lori-Turner Wilson, Bill Burtch, and

Darrel Uselton at the Greater Memphis Chamber of Commerce

Small Business Council Breakfast at the Racquet Club in

August. Lori spoke on Securing Your Base - Reaching and

Keeping Your Best Customers.

Jennifer Blake with the Centre Group speaks at

a recent SHRM-Memphis Compensation and

Benefits CEG meeting about the results 2011

Memphis Salary and Wage Survey.


015 HRscene right:Layout 1 8/29/11 11:07 AM Page 1


ScholarshipsThe SHRM Foundation awards $170,000

annually in education and certification

scholarships to professional and student

SHRM members, and doctoral students.

Educational resources. The SHRM

Foundation's Effective Practice Guidelines

series makes research findings easily

accessible to HR practitioners. The

Foundation has also created a series of

educational DVDs for SHRM chapter

programming, staff trainings, and executive

education sessions.

The SHRM Foundation is grateful for the

generous support of its major donors, the

HR Certification Institute, the Society for

Human Resource Management (SHRM) and

the J. J. Keller Foundation. To fund its

programs, the SHRMFoundation conducts an

annual fundraising campaign. ■

The SHRM Foundation is a 501(c)(3) nonprofit affiliate of the Society for Human Resource

Management (SHRM). The Foundation is a legally separate organization, and is not funded

by SHRM membership dues. The SHRM Foundation is governed by a volunteer Board of

Directors from the HR profession, including academics, practitioners and representatives

from SHRM.

SHRMFoundation VisionThe SHRM Foundation is the globally recognized, premier source of human capital thought

leadership and research.

SHRMFoundationMissionThe SHRM Foundation advances global human capital knowledge and practice by providing

thought leadership and educational support; and sponsoring, funding and driving the

adoption of cutting edge, actionable, evidence-based research.

TheSHRMFoundation'swork includes:Innovative academic research grants. The SHRM Foundation is a

leading funder of HR research. Over the past three years, the SHRM

Foundation has awarded more than $1.8 million in grants to

fund rigorous, original academic research with practical

implications for HR management practice.

RECOGNIZED FOR OUTSTANDING CONTRIBUTIONS

TO MILITARY EDUCATION AROUND THE WORLD

$PVODJM PG $PMMFHF BOE .JMJUBSZ &EVDBUJPO

/BWZ $PMMFHF 0⒏DF c �� *OUFHSJUZ %SJWF c /4" .JE 4PVUI c #VJMEJOH 4��

�� c &�NBJM� NFNQIJT!XFCTUFS�FEV cXXX�XFCTUFS�FEV�NFNQIJT

'PS OFBSMZ �� ZFBST 8FCTUFS 6OJWFSTJUZ IBT CFFO BO"DBEFNJD MFBEFS XJUI UIF NJMJUBSZ�

8JUI GBDJMJUJFT BU �� CBTFT BOE NJMJUBSZ JOTUBMMBUJPOT DPBTU UP DPBTU 8FCTUFS P⒎FST ZPV VOQBSBMMFMFEPQQPSUVOJUJFT UP QVSTVF B IJHIMZ SFTQFDUFE HSBEVBUF QSPHSBN UP BEWBODF ZPVS DBSFFS�

0OF PG UIF UPQ .JEXFTU 6OJWFSTJUJFT GPS .BTUFS`T %FHSFF 1SPHSBNTw .BTUFS PG #VTJOFTT "ENJOJTUSBUJPO .#" w ." JO )VNBO 3FTPVSDFT .BOBHFNFOU

w ." JO *OGPSNBUJPO 5FDIOPMPHZ .BOBHFNFOU w ." JO .BOBHFNFOU BOE -FBEFSTIJQ

�e SHRM Foundation is the globallyrecognized, premiere source of human capital

thought leadership and research.

TheSHRMFoundation

016 Webster/shrm foundation:Layout 1 8/29/11 12:17 PM Page 1


Did you know that youmust comply with the Uniformed ServicesEmployment Rights Act (USERRA) even ifyou are a company of only 2 employees? Aslong as one of you is “the boss” you arecovered under this act and need to knowyour rights as an employer as well as youremployees’ rights if they are uniformedservice members or are members of theNational Guard or Reserves.There are 7 Reserve forces that fall under

USERRA plus the Public Health Service.However, Guardsmen and Reservists dealwith it the most. Most of them areaccountants, truck drivers, managers, policeofficers, welders, and doctors who makeAmerica’s government and economy thestrongest in the world. But, when theyreceive the call, they are soldiers, sailors,airmen and Marines. They are the peoplewho make America’s forces and security thestrongest in the world.

Almost half of the U. S. Military iscomprised ofmen andwomen serving in theGuard andReserve, and 20,000 of them livein Tennessee!

The support of the business communityis needed to maintain the militia traditionthat has kept our country strong. WinstonChurchill once said, “The Reservist is twicethe citizen”.

Tax Credits for

Hiring VeteransAnd did you know that if you hire a

veteran, you are eligible for tax credits? They

range from $1,500 to $8,000 per hire andare a credit against your income taxespayable. You may go to www.vetjobs.comthat provides automated qualification of allavailable tax credits for each veteranapplicant in addition to screening tools tohelp the employer select the best candidates.

SHRM’s Focus on

Military HiringOver 15 months ago, SHRM signed a

statement of Support with the Employer Support of the Guard (ESGR), pledging tofocus special attention on providingresources and training to HR on successfulrecruitment and retention of service-connected employees. At this time morethan 275 SHRM Chapters and 31 StateCouncils have signed their own ESGRStatements of Support helping makeSHRM a key voice in the effort to increaseemployment opportunities for returningveterans and protecting jobs for those calledto active duty.

Once a year in August officials from theESGR sponsor a breakfast for Memphisemployers and present Patriot Awards tothose with outstanding service to the“Statement of Support” program. For moreinformation, please visit www.esgr.org/sos.

ManagingYour Military Employees

EffectivelyEmployee Relations

GENERAL EMPLOYEE PROVIS IONSHere are some of the general provisions of the act that your employees are entitled to.

GENERAL EMPLOYER PROVIS IONSAs the employer, you have rights also:

A leave of absence for the period necessary to perform military service whether that service is

voluntary or involuntary.

Restoration in employment with seniority, status, and rate of pay as if continuously employed.

Persons are not to be discriminated against in hiring, retention of employment, promotions or

other benefits because of present military affiliation or intent to join the military or Reserves.

You have a right to advance notice of an employee’s military duty except in very rare situations.

You have a right to proof of an employee’s military duty.

Dan F. Callahan, III, Tennessee

representative for ESGR; and

Mary Ann Epperson, PHR, ESGR

volunteer, recently facilitated a

presentation for the SHRM-

Memphis Compensation and

Benefits Career Emphasis Group

at the Hyatt Place on Winchester.

017 Military Employees:Layout 1 8/26/11 1:08 PM Page 1


WORKPLACE PROTECTION LAWS

in theWorkplaceGUNS

BY JONATHAN HANCOCK & WH ITNEY HARMON

Legislative actions often closelyfollow sensationalmedia coverage,a phenomenon recently demonstrated by the introduction of "Caylee's Laws" in states across the country. In the employment world, such

reactionary legislation can often be disruptive, especially when enacted legislation dictates major changes to the rules governing the

employer/employee relationship. Following media coverage of a litany of incidents involving workplace violence and the almost constant

coverage of gun violence in today's society is the recent enactment in certain states, including Tennessee, of workplace protection laws.

This article addresses the context in which these laws have been passed, briefly examines the form of this legislation, and comments on

the immediate impact Tennessee's new law has on employers in this state.

TN

�e legislative enactment of workplace protection laws, whichare broadly de�ned as laws that protect an employee's right to bring�rearms onto an employer's premises if they could carry the weaponin other public places within the state, started in Oklahoma with alobbying e�ort from the National Ri�e Association's Institute forLegislative Action. �ese laws also appear to be a legislative reactionto the widespread implementation by employers of workplace violenceand other policies that, among other things, o�en prohibit employeesfrom bringing �rearms on an employer's premises. �ese policies evenextend in some cases to vehicles owned and leased by the employer.Such policies o�en include zero tolerance principles when addressingthings like employee aggression, violence against co-employees, andthe possession of weapons on an employer's premises. In practice,these policies frequently become the justi�cation for disciplinaryactions in instances where the employee's conduct, or their possessionof a weapon, is considered threatening.

Before examining the mechanics of workplace protection laws,employers must understand the risk management concerns presentedby employee violence. First, and most o�en cited, is the fact that

under the Occupational Safety and Health Administration's(OSHA's) "General Duty" clause employers are required to create "aplace of employment which is free from recognized hazards that arecausing or are likely to cause death or serious physical harm to hisemployees." In addition to employees, employers are required underthis clause to provide protection for all vendors, clients, visitors,solicitors, and anyone in the general public who is on the employer'sproperty.

A second consideration is equally daunting, and it encompassesthe civil tort liability that o�en accompanies incidents of employeeviolence. Should the employer have known that the employee maycause harm to others, and if so, did the employer act reasonably underthe circumstances? What if the employer allowed the employee whocaused the harm to work around tools that could be used as weaponswithout �rst conducting a background check or psychological exam?Is that negligent? If so, depending on who is harmed, and perhapscontingent on the application of the state's worker's compensationexclusivity rule or statute, such a claim could have catastrophic civilrami�cations for employers.

018 Guns left:Layout 1 8/26/11 1:12 PM Page 1

Since OSHA can be preempted by state laws, this solves the problemfor employers in Tennessee facing claims that the practice of allowingguns violates OSHA's General Duty clause.

While Tennessee's legislature did clear upmany of the issues arisingunder OSHA's General Duty clause, it does not provide employerimmunity. Conversely, the statute speci�cally states that "nothing inthis section shall be construed to alter, reduce or eliminate any civil orcriminal liability that a property owner or manager may have forinjuries arising on their property." �e state of the law in Tennessee istherefore this – employers may allow guns on their property withoutviolatingOSHA'sGeneral Duty clause, ormay choose to prohibit gunsand comply with the statute's posting requirements, but in either eventthere will not be statutory immunity and employers are therefore le�to their own devices to guard against claims of negligence and/or othercivil claims.

New gun laws like Tennessee's obviously have the tendency to putemployers in a legal conundrum. Compliance with the law allowingguns on the premises puts employers at risk of violating their obligationto protect their employees, while noncompliance with the law couldsubject them to civil and/or criminal liability, and to penalties in somestates. What if an employee works in one state but regularly visits afacility or work site in another state that has a di�erent law addressingguns in the workplace? Does the employer have tomake an exception,and if so, under which law should the exception be made? And whathappens if an incident of violence occurs in Tennessee and the crimesare committed by an employee allowed to have a gun in his or hervehicle? Is the employer now absolved of liability, or do Tennesseeemployers need to add scrutiny to all employees now allowed to carry�rearms to work?

Unfortunately, for now, employers in Tennessee are le� withoutclear answers to the questions above and themany others that are raisedby the enactment of Tennessee's new law. But there are thankfully stilla number of good practices that can help employers avoid liabilitywhile maintaining a legally compliant workplace. Consider some ofthe following suggestions:


Before we explore the new legislation in Tennessee, it is helpful toexamine the state of the law in contiguous states like Mississippi andArkansas. In Mississippi, the legislative pronouncement reads asfollows:

Mississippi Code Annotated § 45-9-55. Private employers inMississippi are allowed under this law to prohibit guns on theworkplace premises, even if locked in a vehicle, so long as the parkinglot or garage is not available to the general public. Public employers arealso o�ered limited immunity underMississippi's workplace protectionlaws. Arkansas employers have less guidance than those operating inMississippi, as there is currently no statute or regulation that governs�rearms on a private employer's premises in Arkansas.

Tennessee recently joined a small number of states by enactingworkplace protection legislation, and Tennessee employers can nowallow handguns on their property under a bill, S.B. 519, signed intolaw by Governor Bill Haslam on March 31, 2011. While Tennesseelaw already allowed employers to permit employees to possess weaponson their property, the new statute speci�es that an employer’s decisionto permit handguns at work does not constitute an occupational safetyand health hazard for Tennessee employees. Tennessee's new lawspeci�cally clari�es that employers who permit employees to carryweapons on their property do not, by that act, create an unsafeworkplace, thus creating an exemption to OSHA's General Dutyclause. While an administrative law judge did recently rule against anemployee who raised a claim that allowing handguns did violateOSHA's General Duty clause, the Tennessee Occupational Safety andHealth Administration had responded to that ruling by announcingthat such decisions would be made on a case-by-case basis.

Under this statute, an employer in Tennessee may prohibit possessionof �rearms on their property so long as notice is posted. Noticelanguage must be substantially similar to the following:

So long as the notice is posted and in English, it becomes a criminalo�ense in Tennessee to possess a weapon in a building or on propertythat is properly posted. In fact, possession of a weapon on postedproperty is a Class BMisdemeanor in Tennessee, and is punishable bya �ne of $500. However, following the enactment of this law, someemployers that opted to allow handguns found themselves facingcomplaints that this allowance violated OSHA's General Duty clause.In response, Tennessee legislature enacted SB0519/HB0283, whichprovides that an employer permitting a person with a handgun carrypermit to carry a handgun on the employer's property does notconstitute an occupational safety and health hazard to other employees.

JonathanHancock

Baker Donelson

Bearman Caldwell &

Berkowitz, PC

WhitneyHarmonBaker Donelson

Bearman Caldwell &

Berkowitz, PC

1. Draft, implement, and revise as necessary a policy that prohibits workplace violence.Make sure all employees understand what this policy prohibits and the consequencesfor violations.

2. Consider security measures that control access to areas like parking lots wherefirearms can be stored. Restrictions to access can be tricky, but having trained securitypersonnel monitoring such areas can greatly limit the likelihood an enraged employeecan make it to his or her car and back to cause harm without notice and an opportunityto avoid the harm.

3. Train HR employers, managers, and supervisors to spot employee conduct thatcould be troubling. Similarly, make sure these "control group" employees know whento keep a watchful eye on employees, i.e., when bad news is being delivered, duringtermination meetings, etc.

4. Don't be too liberal with gun access. Remember that, at most, these laws only allowemployees to bring guns to work for storage in a locked area in the employee's car. Donot expand that right, as allowing a gun to be locked in a locker, etc., may not be coveredas an exception to OSHA's General Duty clause.

5. Involve the authorities at the first sign of a problem. Waiting too late invites criticism thatmore could have been done to avoid the worst scenarios.

(1) Except as otherwise provided in subsection (2) of this section, a public or private employermay not establish, maintain, or enforce any policy or rule that has the effect of prohibiting aperson from transporting or storing a firearm in a locked vehicle in any parking lot, parkinggarage, or other designated parking area.(2) A private employer may prohibit an employee from transporting or storing a firearm in avehicle in a parking lot, parking garage, or other parking area the employer provides foremployees to which access is restricted or limited through the use of a gate, security stationor other means of restricting or limiting general public access onto the property.(3) This section shall not apply to vehicles owned or leased by an employer and used by theemployee in the course of his business.(4) This section does not authorize a person to transport or store a firearm on any premiseswhere the possession of a firearm is prohibited by state or federal law.(5) A public or private employer shall not be liable in a civil action for damages resulting fromor arising out of an occurrence involving the transportation, storage, possession or use of afirearm covered by this section.

Tennessee Code Annotated Section 39-17-1359 (a)(1) states:An Individual, corporation, business entity or [government entity]… is authorized

to prohibit the possession of weapons by any person who is at a meeting conducted by, or onproperty owned, operated, or managed under the control of the individual, corporation, businessentity or government entity.

As authorized by T.C.A. § 39-17-1359, possession of a weapon on posted property or in aposted building is prohibited and is a criminal offense.

019 Guns right:Layout 1 8/26/11 3:29 PM Page 1


federal health care reform law is unconstitutional upholding thedecision of a federal district court in Florida. The decision declaredthat the individual mandate is not authorized under the CommerceClause of theU.S. Constitution, which permits the federal governmentto regulate interstate commerce.

Legal experts predict that the matter of the mandate’sconstitutionality will hit the U.S. Supreme Court in the upcomingterm rather than waiting for all of the federal appeals courts to decidethe cases pending as a result of the August 12 ruling.

SHRM Position: SHRM has traditionally aligned with otheremployer groups and associations on the issue of health care reform.SHRM supports the goal of providing access to health coverage to allAmericans. While SHRM endorses the continuation of an employer-based system, the problem of the uninsured is not a problem solely tobe resolved by employers and payers. SHRM supports legislation to 1.)Improve health care quality through increased use of healthinformation technology; 2.) Provide greater cost and qualityinformation to payers and patients; and 3.) Preserve employerflexibility in offering health care benefits.

Talking Points: SHRM supports health care reform efforts but isconcerned about proposals that limit employer flexibility in designinghealth benefit plans. Health benefit mandates, however well intended,drive up the cost of health care plans for both employers andemployees. Over a hundredmillionAmericans have health, retirementand other valuable benefits voluntarily provided by their employerunder a nationally uniform framework established by the EmployeeRetirement Income Security Act (ERISA). As such, SHRM opposesefforts to erode ERISA and the employer-based system. Congressshould not erode what works to fix what is broken. SHRM stronglysupports efforts to develop standards for a national health informationnetwork.HR professionals understand that electronicmedical recordscan improve patient outcomes and coordination of care while reducingduplication and inefficiencies in the health care system, all of whichcan reduce costs for employers and employees. ■

We welcome opposing view points and invite you to send your thoughts

to [email protected]. We will publish them in the next issue.

ThePatient Protection

&AffordableCareAct,akaHealthCareReformBY CYNTH IA Y. THOMPSON , MBA , SPHR

Let’s begin with a short review. In March 2010 legislationwas passed mandating major changes to health care practices in ourcountry. The followingmandated benefits became effective sixmonthsafter the legislation on all existing health insurance plans:

• Prohibitions on lifetime limits and rescissions

• Restrictions on annual limits

• Limitations on excessive waiting periods

• Requirement to provide coverage for non-dependent children

up to age 26 who do not have an employer offer of coverage

In 2014 group health plans must prohibit pre-existing conditionexclusions and annual limits. Most of us agree that these provisionswere much needed. But wait, there’s more. Here are some of the othermandates:

• Health Care Exchanges

• Employer penalties for not offering coverage and for offering

unaffordable coverage, aswell as penalties for offering low-value plans

• Tax on high-value plans

• No penalty for waiting periods

• Employer-provided free choice vouchers

• Automatic enrollment procedures and long-term-care

enrollment procedures

• Restrictions on cafeteria plans

• Incentives for wellness

Meantime, while employers are trying to figure out how much it isgoing to cost them to comply, 26 states have sued on the basis that theindividual mandate provision of the federal health care reform law isunconstitutional. On August 12, the 11th U.S. Circuit Court ofAppeals in Atlanta ruled that the individual mandate provision of the

While employers

are trying to figure

out how much it is

going to cost them

to comply,

26 states have

sued on the basis

that the individual

mandate provision

of the federal health

care reform law is

unconstitutional.

020 Healthcare Reform:Layout 1 8/29/11 12:14 PM Page 1


JoyceMargulies, Esq., ofMargulies Employment LawConsulting;andDr. Chuck Pierce, Professor ofHumanResourceManagementat the University of Memphis, led a debate on “Managing HumanCapital Issues from a Legal and Ethical Perspective”.

One of the challenging questions discussed was, “Should yourcompany have a workplace romance policy prohibiting co-workersto date? Dr. Pierce has conducted intense research on this topic.His research shows that employees who participate in a lateral (co-worker or peer-peer) workplace romance sometimes experienceincreased levels of job performance, job satisfaction, and to a lesserdegree organizational commitment. �us, Dr. Pierce'srecommendation is that organizations should implementorganizationally-sensible rather than legal-centric workplaceromance policies.

�ose who disagreed with Dr. Pierce felt that allowing co-workersto openly date increases the possibility of sexual harassment chargesand litigation. Everyone agreed that having a policy will not preventco-workers from dating or falling in love.However, having a policyin place will facilitate disciplinary action if the policy is violated.Some companies require employees to disclose if they are dating aco-worker so that one of them can be transferred to a di�erentdepartment or location. In the event, relocation is not possible;one employee would need to �nd another job. If the relationship isnot reported, both may be terminated.

Another option is to have a policy that prohibits dating between asupervisor and a direct report only. �is type of relationship cancause problems with other direct reports who perceive the directreport who is dating the supervisor as receiving special treatment.�is can be very disruptive to productivity in the work group. Also,there is a much higher probability of a sexual harassment charge inthis situation if the relationship goes sour. ■

(L-R) Joyce Margulies, Esquire, Margulies Employment Law Consulting, Dr.

Chuck Pierce, Professor of Human Resource Management, University of

Memphis, Randy Hutchinson, President of the Better Business Bureau of the

Mid-South, Judy W. Bell, Founder of the Ethics CEG.

ETHICSCareerEmphasisGroup Meeting

TIF LOPXTXPNFO

SJHIU EPXO UP UIF NPMFDVMF�%%SS��$$IISSJJTTUUJJOOFF��..FFTTUUFFNNBBDDIIFFSS��IIBBTT��CCFFFFOO

TTFFMMFFDDUUFFEE��CCZZ��UUIIFF��##FFTTUU��%%PPDDUUPPSSTT��PPSSHHBBOOJJ[[BBUUJJPPOO��BBTTPPOOFF��PPGG��UUIIFF��UUPPQQ��EEPPDDUUPPSSTT��JJOO��IIFFSS��TTQQFFDDJJBBMMJJUUZZ��JJOOUUIIFF��..FFNNQQIIJJTT��44IIFFMMCCZZ��$$PPVVOOUUZZ��BBSSFFBB��

%S��$ISJTUJOF�.FTUFNBDIFS� JT�B�NBSSJFE�NPUIFS�PG� UXPDIJMESFO��4IF�BOE�IFS�IVTCBOE�MJWF�JO�$PSEPWB �BOE�BSFBDUJWF�NFNCFST�PG�(FSNBOUPXO�6OJUFE�.FUIPEJTU�$IVSDI�

%S��.FTUFNBDIFS�QSBDUJDFE�XJUI�B�MBSHF�QSBDUJDF�GPS�UFOZFBST �BOE�UIFO�MFGU�JO��UP�PQFO�UIF�TPMP�QSBDUJDFXIJDI� TIF� DVSSFOUMZ� PQFSBUFT�� 4IF� JT� BDUJWF� PO� UIFNFEJDBM� TUB⒎� PG�.FUIPEJTU� (FSNBOUPXO� )PTQJUBM� BOE#BQUJTU�)PTQJUBM�GPS�8PNFO��0VUTJEF�PG�UIF�P⒏DF �TIFFOKPZT�SFBEJOH�BOE�BUUFOEJOH�QMBZT �BOE�JT�B�NFNCFS�PGTFWFSBM�CPPL�DMVCT�

"DDPSEJOH� UP� 3PCFSU� #VSOT� PG� 4ZNCJPO� 1IZTJDJBO4FSWJDFT �B�DPNQBOZ�XIJDI�NBOBHFT�DFSUBJO�BTQFDUT�PG%S�� .FTUFNBDIFS�T� QSBDUJDF�� %S�� .FTUFNBDIFS� JT� BOFYUSFNFMZ� QMFBTBOU� BOE� DPNQBTTJPOBUF� 0#�(:/QIZTJDJBO �BOE�JU�JT�B�KPZ�UP�XPSL�XJUI�IFS��*�BN�IBQQZ�UPTFF� UIBU� IFS� QFFST� WJFX� IFS� MJLFXJTF� BT� CPUI� B� pOFQIZTJDJBO�BOE�GSJFOE��

.FTUFNBDIFS�$MJOJD�GPS�8PNFO(ZOFDPMPHZ�w�0CTUFUSJDT

$ISJTUJOF�4��.FTUFNBDIFS �.�%� �'�"�$�0(

��8PMG�3JWFS�#PVMFWBSE

(FSNBOUPXO �5/��

��

XXX�NFTUFNE�DPN

021 Mestmer/Ethics:Layout 1 8/26/11 1:41 PM Page 1


These are the facts: the number one type ofcase filed in federal court is criminal, i.e., thefederal government going after drug dealers,corrupt politicians, and the like. The secondmost filed type of case is employment-related.In the last decade there has been a 200%increase in employment law cases filed infederal court. The South leads in ADA casefilings and 75% of all cases filed involvedischarge. Even if you win your case, you stillhave to pay your own attorney fees.

Avoiding Problem EmployeesOne of the best methods to handle anemployment problem is to not hire one in thefirst place. The hiring process begins with agood application, pointed interviewquestioning and ends not with the applicantaccepting the job, but with the probationaryperiod. Make sure that you have a well-prepared application designed to screen outpotential problems, even before they becomeyour employees. The application should bedrafted and reviewed by an employmentlawyer and should stress previous workexperience and future goals. Make sure yourapplication lets the applicant know he is“employed at will”, subject to drug testing, andthat any omissions or false statements on hisapplication may subject him to discharge.

In-depth InterviewingReview the application with the applicant.Press strongly about the applicant’s prior workexperience. Ask hypothetical questions. Thesequestions can really reveal whether you maybe looking at a problem employee.

Effective Use of the

Probationary PeriodDuring the probationary period, managersshould not only evaluate objective criteriasuch as job performance and attendance, butalso evaluate subjective areas like attitude andwillingness to be a team player. Mostemployees are at their best attitude-wise whenthey first begin employment, so if anemployee shows signs of becoming a problemin this initial period, steps should be taken todeal with the situation immediately before itbecomes a bigger problem.

Handling Problem EmployeesThe most important advice in dealing with aproblem employee is to actually deal with theproblem employee – don’t be afraid toconfront a problem employee. Chances arethis person is adversely affecting morale andproduction in the workplace and can causeyou problems down the road.

Handbooks and Progressive

DisciplineI strongly recommend that every employerhave a handbook. It only makes commonsense. Society can only operate effectivelywhen its people understand what is right andwhat is wrong.While there are pros and consof having a handbook, the pros outweigh thecons. A handbook lets employees know theconsequences of their actions. Much morethan that however, a handbook is aninvitation for your company to communicateto employees all the great benefits yourcompany has to offer.

Critical to this entire process is the need forsomeone knowledgeable in human resourcesto administer this plan. The system shouldhave a mechanism for reporting problems,which goes above and beyond simply filing acomplaint with a supervisor. The immediatesupervisor should not have the final call indiscipline. Rather, another manager,preferably human resources, should reviewthis decision. Finally, a handbook shouldcontain a procedure to report claims ofdiscrimination, harassment, and retaliation.

Rule breakers usually do not get sympatheticattention in a business where employees know

From Hireto FIRESmall Business Practices

022 Hire to fire L:Layout 1 8/29/11 11:21 AM Page 1


that the rules are fair and that they areconsistently applied. But there is where therub occurs. The rules must be appliedconsistently. Periodically conduct employeesurveys to determine whether they feel therules are being applied consistently andfairly. Employee perceptions are the realityof the workplace.

Protecting AgainstWrongful

TerminationIf a problem employee slipped past yourscreening procedures, and your investigationof the incident reveals that discharge iswarranted, you must pull the trigger. Icannot tell you howmany times I have beeninvolved in a lawsuit where the supervisorsays, “I should have fired him when I had thechance.” Generally, if an allegation is madewarranting discharge, you should suspendthe employee “pending the outcome of theinvestigation” after you have interviewed theemployee. There should be a specific rule oroffense the employee has violated. Theemployee should be aware that his conductsubjects him to termination because yougave him a handbook and you have a receiptto show it.

If others have committed the same offenseand have not been discharged, you shouldhave documented the mitigating factorspresent in the current situation thatdistinguishes it from other situations whereemployees were not discharged. You shouldhave investigated all the facts thoroughly.Remember that anyone can sue, but noteveryone is protected under the law.

You must be careful when discharging:

a. minorities

b. females

c. those over 40 years of age

d. employees with serious health conditions

or with chronic attendance problems

e. employees with disabilities

f. employees who have complained of illegal

conduct

g. employees with worker’s compensation

injuries

You should also consider whether aseverance agreement and release isappropriate and whether an exit interviewwould be appropriate under thecircumstances. Please be certain to get advicefrom an attorney before preparing a releaseagreement as the laws continue to becomestricter regarding what agreements will be

upheld in court.

Not every termination is the result of a

violation of company rules, but is still difficult

for the employee to accept. Here are some

more tips for successful termination of

employees. When the termination is not the

employee’s fault, but is the fault of a reduction

in force, reorganization, or some similar

problem, try the following approach:

1. Explain the situation that brought about the

termination.

2. Explain what your company has done to try

to avoid the situation.

3. Explain that the decision has been made to

let the employee go.

4. Express confidence in the employee and

praise the employee’s good service as

applicable.

5. Explain what benefits will be offered and

what assistance may be offered as far as

finding a new position.

6. Give the employee time to react and listen

to his reaction. ■

Charles W.Cavagnaro, JrAttorney with

Evans | Petree, P. C.

"You've gotto come

together as ateam in

Memphis andrealize you're

a sleepinggiant...”

-“Digger” Phelps

023 Hire to fire/R/ ad:Layout 1 8/26/11 1:43 PM Page 1


Elizabeth Merrell SellersVP Human Resources,

Wunderlich Securities, Inc.

What’s your Generation?

No matter what generation

you belong, understanding and

discussing generational differences

are a hot workplace diversity issue when

companies are facing not just four, but now five

generations at work. Some of us may be on the edge of one

generation and act more like the other. Others believe they

are in one generation and look at the chart to be surprised to

find they are in another. Regardless, age-diversity in the

workplace affects work practices. Perceptions towards the

different groups and their work styles are very real.

Generational di�erences and the natural tension between the groupshave been noted as one of the top ten trends of major concern in someform for HR Professionals in surveys since 2005 as so noted in theSHRMFebruary 2011Workplace Forecast. Boomers retiring and/orstaying longer than Gen X’ers created a “gray ceiling” on the toppositions. Generational “values” di�er in perspectives on working toretirement and work/life balance. Companies looking ahead have avalid concern in meshing the groups in their complex workforces, aswell as �nding the highly skilled future workforce needed.

�e May 2011 SHRM HRMagazine’s cover articleManaging

the Generations written by AdrienneFox describes each generation in a section

called “Talkin Bout My Generation.” Astereotype is an oversimpli�ed characterization of

each generation. In a learning environment, employees can learnthat stereotypical generational descriptions do not apply to every personand every situation, but can be used to see how values of each generationwere developed. More highly engaged workforce organizations thatinvest in generationdiversity learninghave less tension, better solutions toissues and a greater understanding between generations within workgroups.

As professionals taskedwith�nding and retaining the best of the best andthen creating a highly engaged workforce, you must �rst know thecomplexity of yourworkforce and your organization’s current and futureneeds. �e second challenge is to create a learning environment whereculture solutions are created that embrace needs of the di�erentgenerations . An example may be di�erent communication methods.Traditionalist, Boomers and some Gen X’ers may prefer e-mailcommunicationswhile otherGenX’ers ,Millennials andGenZ ‘ers preferthe newer social media methods. Whatever your challenge, know thecomplexity of your workforce and teach them to know themselves as acritical starting point. ■

The GenerationsYear Born Nicknames 2011 Ages

1925-45 Silent Generation or Traditionals 66-86

1946-64 Baby Boomers 47-65

1965-80 Generation X 31-46

1981-95 Millennials, Me First Generation or Generation Y 16-30

1996 - Generation Z , Generation 2020 or Digital Natives 16 or less

GENERATIONALUnderstanding

DDIIFFFFEERREENNCCEESS

024 generational differences:Layout 1 8/26/11 1:44 PM Page 1


Relations Board recently backed the case of awoman who was fired by American MedicalResponse of Connecticut Inc. for Facebookpostings that were critical of her supervisor.Under the National Labor Relations Act –“whether it takes place on Facebook or at thewater cooler, it was employees talking jointlyabout working conditions, in this case abouttheir supervisor, and they have a right to dothat". Be aware that although your companyhas no unionworkers, your employees are stillprotected under the NLRA and may engagein protected concerted activities includingdiscussions about salary. Your companyhandbook should not require confidentialityconcerning employees discussing their salarywith other employees.

Personal Use of

Company InternetMany companies have policies prohibiting thepersonal use of the company Internet. Theymay also have a policy regarding an employee’sright to privacy which advises the employeethat the company computers and Internet arenot for personal use and there should be noexpectation of privacy. However, such apolicy does not entitle the employer to viewan employee’s personal emails because theemployee was using the company computerand Internet to access his personal emailaccount from the workplace, unless thecompany specifically included personal emailaccounts in the right to privacy policy. Acompany is not protected in this situationbecause personal email is not consideredemployer client communication. You shouldalways consult an attorney before viewing anemployee’s personal email.

There are many state and federal lawsgoverning employee privacy and employerrights. Among these are theWiretap Act, theElectronic Communications Privacy Act,Public Disclosure of Private Facts, IntrusionUpon Seclusion Act, False Light and FederalTradeCommissionGuidelines to name a few.You should be aware of your employee’s rightsas well as the employer’s rights beforeimplementing disciplinary actions. ■

Whatistheextentofanemployer'srighttomonitoremployeecommunicationsand/or to discipline employees for improper Internet use, Facebook or blog postings, or othercommunications?What legal rights to privacy does an employee have and what claims may anemployee bring against you for invading his or her privacy?

Use of Social MediaThere is a whole new world oftechnology available toemployees today includingFacebook, My Space, LinkedIn,Twitter, blogs, camera phones,instant messaging, and the listgoes on and on. It seems thateveryone is using socialmedia forbusiness as well as for recreation.The use of social media in theworkplace is becomingmore andmore acceptable. But its use stillcauses problems and concerns foremployers. Two of the mostoften asked questions arewhether it is legal for anemployer to check the social

media of applicants? Can you use social media inmaking hiring decisions? The answer to bothquestions is “Yes”. However, employers must be consistent in their practice of reviewing socialmedia of applicants. You should not check My Space only some of the time. If you use socialmedia to screen applicants, youmust be consistent and checkMy Space on every applicant everytime.

Another question that arises is whether to post open positions on Facebook. Many companiesare now using Facebook and Twitter to attract and retain customers. Should they post openpositions on their company Facebook accounts also? The answer again is “Yes”. This practice isperfectly legal as long as you post all positions. If you only post certain positions, it makes yourcompany liable for disparate action claims or unintentional discrimination, which could attractthe attention of the EEOC should a disgruntled applicant file a complaint.

However, employers should not post job openings exclusively to social media becausemany jobapplicants will not have access to computers or the Internet. Chances are that members ofdifferent protected classes will have less access to a computer and/or Internet, thusunintentionally denying access to jobs to members of those protected classes and potentiallygiving rise to claims of disparate impact claims.

Protected Concerted ActivitiesWhat can an employer do about an employee who posts unflattering remarks about hissupervisor on Facebook or other social media sites? Employers should not discipline employeeswho post unfavorable comments about their supervisor on social media. The National Labor

EmployeePRIVACYCLAIMS

...“whether it takes place on

Facebook or at the water

cooler, it was employees

talking jointly about

working conditions,...”

025 employee privacy:Layout 1 8/26/11 1:45 PM Page 1

Distinguish yourself.

NEW AT CBUNEW AT CBUr SHRM® Learning System/Human Resource Certification Exam

Prep: Classes meet every other Saturday, September 13 through

December 3. Call (901) 321-3291 or email [email protected].

www.cbu.edu/shrm

r Physician Assistant Program: Inaugural class begins January

2012. The Master of Science in Physician Studies is

cohort-based and consists of a 27 month/7 semester

curriculum. Applied for provisional accreditation.

www.cbu.edu/PAS

r RN to BSN Program: 18-month BSN program with nursing

classes one night per week, blending classroom and online

teaching. New cohorts begin in Spring and Fall.

www.cbu.edu/nursing

Your future. Our tradition.

iculum.rur

-basetohor

edcrvisional acoor prpplied ffor prA

th/7 semestonsists of a 27 moned and c

tion.dita

er/7 semest

.e.cbuwww

. Neeaching

asses one nigh

o BSN PN t

.e.cbuwww

edu/nursing

ing and Fin in Sprts begohorew c

, blending classreekt per wnigh

arogth BSN pram: 18-monrogrP

ASedu/PPAS

.allnd F

oom and onlinessr

am with nursing

ar tradition.26 www.HRprosMemphis.com

026 CBU:Layout 1 8/29/11 11:23 AM Page 1

There’s no one-size-fits-all solution to labor

and employment issues. That’s why we

partner with clients to understand and help

meet their specific goals. Our team approach

offers a full-service L&E department within a

full-service firm, so our clients get what they

need, when they need it. And we’re proactive,

providing on-the-ground customized training

and education programs to prevent problems

before they occur.

Clients know it’s not only what we do, but

how we do it, that matters most. It’s how

Baker Donelson has helped clients for more

than 120 years.

w w w . b a k e r d o n e l s o n . c o m

E X P A N D Y O U R E X P E C T A T I O N S

The Rules of Professional Conduct of the various states where our offices are located require the following language: THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison

Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. FREE BACKGROUND INFORMATION

AVAILABLE UPON REQUEST. © 2011 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

ALABAMA

GEORGIA

LOUISIANA

MISSISSIPPI

TENNESSEE

WASHINGTON, DC

SM

OUR JOB:

Know

labor and

employment

law

OUR GOAL:

Be a valued part of

your business team

Included in Best Lawyers in America® 2011’s

list of the top ten firms in the nation for

Employee Benefits Law and Workers’

Compensation Law, and in the top fifteen for

Labor and Employment Law

Named by Benchmark: Litigation

(2009) as a “Recommended Firm” in

Louisiana, Mississippi and Tennessee


027 BakerDonaldson:Layout 1 8/26/11 1:48 PM Page 1

028 -DataFacts:Layout 1 8/26/11 1:49 PM Page 1

Documents

HR Professionals of Greater Memphis- Vol. 1:1