SHRM-Atlanta

The Final Four this weekend will feature this season’s four most effective NCAA Men’s Basketball teams; Ohio State, Kentucky, Louisville and Kansas.  A common mission, strong leadership, collaboration and execution helped these teams endure the regular season and win in the NCAA tournament.  Corporate teams require the same elements to perform together and achieve business goals.  Developing a strong team, clarifying roles and creating an environment that encourages collaboration are the leader’s responsibility.  

There are a number of team development models out there that are popular and respected.  I’ve made use of Bruce Tuckman’s “5 Stages of Group Development Model” in my team building learning consulting, as well as Glen Parker’s thought leadership from his book “Team Players and Teamwork.”

A great new resource for leaders and team members is the recently published book entitled “The Secret of Teams: What Great Teams Know and Do.”  The author is my fellow Atlantan Mark Miller, Vice President, Learning and Development of Chick-fil-A. During his time with Chick-fil-A, annual sales have grown to almost $4 billion. The company now has more than 1,500 restaurants in 38 states and the District of Columbia.

What I enjoyed most about the book is Mark’s creative use of a fictitious business and fictitious characters to explore real-world business situations and challenges facing teams.  Through the characters’ experiences we learn that effective teamwork requires a special kind of leadership, a model that is fresh and insightful. 

Mark also provides a “High-Performance Team Assessment” that leaders and their team can take and discuss the results together.  The book was informative but also fun to read, something that isn’t always the case with business books.

I spoke with Mark to ask him a few questions about the book; here is what he had to say:

Q. You describe members of the highest performing teams as having an “all for one, one for all attitude.” What single behavior best describes this mindset at work?

A.  What separates good teams from great ones is a sense of community. That’s what turbo-charges performance. There is no single behavior really. Community is cumulative over time. It’s when you acknowledge great performance or help someone who is struggling on a project that you don’t have to. When you learn about team members’ passions, hopes, dreams, striving and failing when you don’t meet the goal. Communities celebrate together, mourn together and do life together. You can’t force people into a community, but you can create the condition that’s appealing and compelling.     

Q. What is the most important action a leader can take to build an effective team?

A.  There are three key actions. 1) Focus on talent, 2) ensure they have the necessary skills and 3) consciously cultivate an environment of community.  A leader can’t pass on one or two of these; they must acknowledge all three ingredients. Like our popular lemonade recipe at Chick-fil-A you need lemons, water and sugar. You need all three. Building an effective team is challenging. It requires courage and discipline.      

Q. How do you suggest leaders and teams use the High-Performance Team Assessment you provide in the book?

A. I’d recommend you 1) Complete the form individually, and talk about the answers as a group. Look for patterns where you agree and disagree. You’re bound to learn something just by starting the conversation. 2) Prioritize critical gaps and have the team decide what constitutes a critical gap. 3) Create an action plan and measure progress. You can complete the form again at the team’s discretion.    

For a free copy of the assessment, click this link to Mark’s Blog, GreatLeadersSERVE.Org under resources to find The Secrets of Teams Assessment. 

Is your team playing at a Final Four level?  Interested in Mark’s book?  Check out “The Secret of Teams: What Great Teams Know and Do.”

I had the pleasure of kicking off this year’s 22^nd Annual SHRM Atlanta Conference Total Rewards track with Achiever’s Rob Catalano’s session: 2012 Trends in Recognition – an energetic session focused on how employee engagement drives revenue.

According to a recent Gallup poll, organizations that recognize employees experience 47% higher profits, 50% higher sales and 50% higher customer loyalty. Wow. So why don’t more companies take this to heart?

Well, they are. Companies realize that connecting the People Strategy back to the team, and aligning HR and Strategy will only improve the company’s chance of meeting and/or exceeding their overall goals, just by implementing recognition programs that motivate and excite. “Focus on employees first,” Rob said. And make it specific, meaningful, and timely.” Great ways to do this include:

Start by creating a foundation built on culture and core values. Be sure to communicate and demonstrate to across the organization.

Consider results-based recognition like personal wins, cost-savings, and innovation, hitting goals, and going above and beyond. (Walk before you run!)

Implement a social recognition platform. 98% of companies believe that social engagement is an important tool for recognition and retention.  One emerging trend is the gamification of recognition. Similar to Foursquare’s badges and leaderboard concepts, a gamification strategy encourages can engage the entire workforce, creating a fun and competitive and productive environment.

So where do you begin?

1. Ask if employees are engaged.
2. Use relevant data to get executive buy-in.
3. Identify behaviors your company wants to see more of.
4. Then Do It! Recognize performance, not presence.
5. If you think you want to recognize, then re-think and re-tool the rewards strategy.

What happens to highly engaged employees? What is the real ROI? You want to make an impact, and you want to make it meaningful. By doing so, the return on this investment is a retention rate of 87% – with this kind of return, why wouldn’t you focus on the people who make your company the success it is today.

Jill Heineck, Principal of Focus Relocation LLC, an independent relocation consulting firm, where connecting HR to talent mobility is the focus. Jill specializes in helping companies identify areas talent and resources may be seeping out as it relates to talent attraction and retention efforts, and helps to find solutions. Companies looking for creative ways to attract and engage top talent, raise its internal and external brand profile, and gain a competitive advantage, partner with Focus, where the goal is to maximize the organization’s return on relocation.

Confidence, Leadership, Influence, and Implementation

I just attended my first SHRM-Atlanta Conference and had the honor of being invited to blog for the Business Acumen Sessions. I knew the conference would be fantastic.  But the rich quality of the content that was offered was even beyond my wildest expectations.  The event was incredible!

I used to work as an HR executive and during this SHRM-Atlanta conference it was fascinating to see how much that role has changed and evolved over the years.  Today it is more important than ever to realize the key components of HR leadership and the vital role that HR management plays within an organization.

I noticed four common themes interwoven into presentations and panel discussions as we heard from the industry’s top HR gurus.  So I thought I would highlight those.

Confidence

Several presenters emphasized the necessity for HR leaders to exude confidence.  They explained that if you can’t envision it, then you will never be able to share that vision with others – and you won’t achieve it.

Confidence is always a key ingredient to success.  You have to trust in your ability and act decisively, knowing how much value you bring to the table.  But before demonstrating confidence on the outside, you have to cultivate it within yourself.

Before you start to construct and fuel a talent pipeline, create and inspire a positive workplace culture, or act as a strategic partner you must first believe in yourself.

Influence

It is critical that HR executives master the art of “influencing those who are influential.” You have to convince senior decision makers to invest in recruitment, development, retention, succession-planning, and a dynamic, positive culture.

But HR results are not so easy to quantify. Providing metrics related to profit margins, sales volume, and the number of widgets manufactured every quarter is a whole lot easier.

So HR executives need to figure out innovative ways to illustrate the value of having the best people and the best working environment. You have to draw convincing correlations between HR initiatives and the accomplishment of organizational goals.

Leadership

But to be perceived as a strategic senior partner, you need an executive mindset.  Move beyond any psychological limitations that restrict you to playing a smaller, less important role.

As Pat Bernard explained, “Take the administrative part of HR and make it a non-issue. Don’t be seen as the administrator or taskmaster.”

I also loved the insight shared by Nancy Vepraskas who said, “To become a more strategic leader, you have to have a leadership mindset.  Don’t assume that you are a strategic partner and then get asked questions and find yourself in the weeds.”

Implementation

While addressing HR challenges, the conference simultaneously empowered all the participants with innovative tools, intelligent strategies, experienced insights, and sustainable inspiration.

A powerful team of HR experts shared a veritable library of wealthy tips and insights.  They told us how to improve employee engagement and create healthier and more productive work environments.  They explained dynamic ways to get involved on a leadership level to exert progressive influence across all facets of your organization.

Now we have to focus on developing specific competencies that deserve our attention.  We have to commit ourselves to our individual leadership, and begin to take steps toward mastering the tools, strategies, and techniques we gained from the conference.

I came away enlightened, enlivened, and rejuvenated.  I had a wonderful, transformational experience at my first SHRM-Atlanta Conference.  I want to congratulate SHRM-Atlanta and all the participants for their commitment to lifelong learning and professional development.

Sarah Hathorn, AICI CIP, CPBS is an internationally distinguished executive coach, corporate consultant, professional speaker, and the founding CEO of her own company, Illustra Consulting.  A career acceleration and leadership presence expert, Hathorn created the innovative Predictable Promotion System, a 10-step proprietary process she uses to coach managers aspiring to be directors, directors seeking vice presidential promotions, and VP’s eager to ascend to the C-suite.  Hathorn served as a senior level executive for a Fortune 100 company for 25 years, and she has more than 30 years of experience mentoring high potentials for rapid career advancement and extraordinary success.

Sarah’s tips, insights, and advice on professional presence, career acceleration, and executive leadership development have appeared on Forbes.com, msnbc.com, The Huffington Post and in features published by numerous newspapers and magazines including the New York Times and Money Magazine.

I love conferences. It’s great to gather with a group of other professionals interested in learning something new and connecting with colleagues.  I was thrilled to be invited to attend SHRM-Atlanta to tweet and share some written insights.  I’ve been to many conferences, and this one was particularly well run and organized.  As a participant, I appreciated SHRM-Atlanta’s online resources to help me prepare to make the most of the event.  Vendors were friendly and forthcoming with information, and there seemed to be food or a meal every time I turned around!

I was struck by a great lesson in the first session I covered.  Coincidentally, the same theme permeated three sessions I attended!  Getting Talent Management Right, Now That’s the Power of The Home Depot showcased speakers Clarke Peterson, Principal Consultant, Atlanta Leadership Consulting and Gretchen Lumsden, Senior Manager, Talent Management, The Home Depot.  The session focused on a “do-it-yourself” theme, as Home Depot is the mecca for do-it-yourselfers.  Peterson said something that really resonated with me.  He explained, even if you are a do-it-yourselfer, “You don’t need to grow the trees” if you want to build a deck.

It’s true, isn’t it? You can be a DIYer, but you can still go out and buy your wood to build your deck.  What does this have to do with HR?  The session focused on how The Home Depot customized a commercially available tool to help them identify the best talent to hire.  The presenters explained how a company used to doing everything themselves, from scratch, realized they could benefit from metaphorically “buying the wood to build the deck” for their talent management tools.

This lesson was also evident in Mark Toth’s keynote, “Everything you always wanted to know about employment law.  He illustrated employee scenarios and shared information that made it clear organizations need to train their employees and managers to prevent potential legal problems before they happen.  Toth described how stressed the workforce is, costing $200-$300B in losses each year due to “stress-related absenteeism, burnout, decreased productivity, workers comp claims, turnover and insurance costs.”

But, do you need to create something new from scratch to address it?  Implement new policies?  Organize new task forces?  Toth (while he may have intended this as tongue in cheek), answered these problems with one word: “Love.”  He says, “Be nice to your employees.” (Did I mention he cited a statistic – per Right Management – “84% of employees plan to leave their companies in 2012?”)

Yes, in reality, everyone (especially Toth) knows there is more to it than just “love,” but it’s significant that the presentation ended on that note. There is something powerful about breaking down all the problems and lawsuits to a simple principle – one that doesn’t involve growing your own trees to build your deck.

Matthew Grabell, attorney, president & CEO of Employee Relations Solutions presented, Social Media and Legal Implications – How to Avoid a Lawsuit.  This session further illustrated how big problems can be prevented with simple solutions, and you don’t need to reinvent the wheel. One of the biggest problems?  Employees don’t seem to understand ramifications of sharing unprofessional details of their lives and opinions online.  These details become the manager or HR office’s problem when they (inevitably) go public.

A basic (no need to cut down trees) solution?  Train the employees.  Let them know, as Grabell explained, their Facebook passwords can be subpoenaed in a lawsuit if it were found they lied under oath about a topic related to what they may have posted there.  My suggestion?  Show employees how to use social media for the good – train them and encourage them to be brand ambassadors.  Do you need to grow your own wood to build this deck?  Do you need to write your own guide to social media use?  No, you don’t.  If you identify an expert who already understands social media to train your team, you will save tons of time and effort.  This coach should encourage your employees to use social media professionally and explain why it will be a boon to their careers.  The consultant can remind your staff why unprofessional information they post online may make it difficult for them to market their skills and expertise.  Will this solve every problem?  No, of course not, but it is a step in the right direction, and a step that does not require growing your own trees.

What are you doing in your daily job or business that effectively has you “growing the trees” to build your “deck?”  Are you trying to create a program or system someone else already provides?  Are you moving ahead, dogmatically ignoring people or tools to make your life easier?  Did you take the time to research options to make your plans into reality before you started effectively “planting seeds to grow your own trees?”  If so, maybe it’s time to take an all-important step back.  Stop sprinkling seeds and give a good look around to make sure there aren’t better resources or solutions that could improve upon your homegrown approach.

Miriam Salpeter is a social media strategist and author of Social Networking for Career Success (LearningExpress, 2011) and 100 Conversations for Career Success (LearningExpress, expected fall, 2012). CNN named her a “Top 10 job tweeter” and she contributes to U.S. News & World Report’s “On Careers” column. Featured on CNN and quoted in major media outlets such as The Wall Street Journal and The New York Times for her cutting-edge advice, Salpeter is an in-demand coach, writer and speaker regarding job search and social media. She teaches clients to take advantage of online tools and creates and optimizes social media profiles and professional websites. Learn more via her blog, Keppie Careers, and follow her on Twitter, Facebook, LinkedIn or Google+.

By Michael D. Haberman, SPHR

What do scary news, leadership training, networking, tweeters and a guitar playing attorney have in common?  Give up?  The answer is the SHRM-Atlanta 2012 conference which was held on March 13^th and 14^th.  But that is not sufficient information to fully understand what occurred, so let me explain.

I am sure you are curious about the guitar playing attorney.  That was Mark Toth of ManpowerGroup North America. He was the keynote presenter on Tuesday the 13^th.  He regaled with facts like 32% of companies will have a lawsuit that will cost them up to $50,000.  Another 28% will have one that costs up to $100,000, while another 39% will pay over $100,000.  Many of them well over $100,000.  And 1% will pay over a $1,000,000 because of the number of people involved in the lawsuit or the facts of the case or both.  His presentation was not one of joyful news, but he presented it in an entertaining manner, and he pulled out his guitar and led us in a song at the end that had as its subject matter employment law.  Very creative and entertaining.

There were many, many people using Twitter, some of us as “official” and some not.  Everyone was encouraged to broadcast the message via social media.  So it is good to see HR and HR organizations embracing social media use beyond what we outliers do.

Of course there was a lot of networking going on with old contacts and making new ones.  Many a business card was traded.  The marketplace was well run and set up to encourage meeting people.  If you did not then it is your own fault.

The scary part I mentioned?  Well, I was assigned to follow and write about the Law and Legislation track.  All the presentations were informative, some were entertaining, but all of them were scary.  Let me give you a sample or two of what I am talking about.

• A thumb drive is the most likely way your employees can steal your date, with the typical 8 gig drive holding over 80,000 documents.
• Disability has moved from the realm of equal opportunity to being affirmative action.
• Lawyers can make you look like a bumbling fool in a deposition if you have not crossed every “t” and dotted every “I” and even then you will be miserable in the process.
• 88% of your IT staff said they will steal data or sabotage your data if they are fired.
• There are more ways your data can be leaked than you can probably count.
• Sending documents to your home computer to work on them may violate HIPAA.
• Enforcement efforts by both the EEOC and the USDOL are on the rise for the third year in a row.

So much for the scary and bad news. There was some good news as well. This included:

• Handbooks can be crafted to allow you flexibility and not box you in.
• The State of Georgia has made agreements such as non-competes and non-solicitation much easier to use than they have in the past.
• Mandatory arbitration agreements can actually protect you from wage & hour class action suits.

All told the law and legislation track was very educational as was the entire conference.  So put next year’s conference in your budget and plan on joining us.

Michael (Mike) D. Haberman, SPHR is a consultant, writer, speaker and co-founder of Omega HR Solutions, Inc.  He has been in the field of HR for 30 years as both practitioner and consultant. He specializes in compliance issues for his small business clients.  He is the author of the blog HR Observations which can be found at www.omegahrsolutions.com and he has been writing blog posts on a full spectrum of HR topics for almost seven years.  He is an active user of Twitter and can be found at @mikehaberman or @HRComplianceGuy.  He has been an instructor in HR for 14 years and has helped many people achieve their PHR or SPHR during that time.

Every spring, many look forward to The Masters golf tournament in Augusta, Georgia.  Who is your pick to win this year?  I’ll bet many of you are picking Phil Mickelson or Tiger Woods.  Why are these names coming to mind?  The reason is that they have won it before…MULTIPLE times.

“A pattern of past behavior is the best predictor of future behavior.”  This is the underlying principle behind behavioral interviewing.  This is one principle behind our guess as to who might win the Masters this year.

At the SHRM-Atlanta Conference during the Behavioral Interviewing concurrent session, we’ll discover how this principle comes into play in the hiring process.

When a company seeks to fill a vacant role, the job description is created.  To facilitate behavioral interviewing, job competencies are also defined for the role.  As candidates are interviewed, competency/behavioral based questions are used to assess the candidates past with the aim of trying to predict how they will perform if hired.

Let’s take an example.  Assume your company is hiring to fill a supervisory position.  So, one competency that will be needed is management.  In the interview for this role, one might ask, “Give me an example of a situation when two subordinates weren’t getting along.”  The interviewee will give the overview of a real-life situation from the past. Then, once we understand the situation, we’ll ask, “What did you do?”  This is the “RESPONSE”.  The interviewee might share that they got the two subordinates together and discussed it, or maybe they ignored the situation, or maybe they fired them both.  There are certainly many different management approaches to this situation.  Finally, we ask, “What was the outcome?”  From this, we learn what ultimately happened.

This line of questioning gives us the PROBLEM, RESPONSE, and OUTCOME of a situation that the candidate might be faced with in the role we’re hiring for.  Ultimately, we look at the RESPONSE and see if this behavior is in line with the company culture and the needs of the open position.

Behavioral Interviewing is used by most large companies and continues to evolve as an effective technique to assess a candidate’s potential fit with a position.

You can see Tom’s session, Behavioral Interviewing, at the 22nd Annual SHRM-Atlanta HR Conference at the Cobb Galleria Centre in Atlanta, on March 13 from 2:20 to 3:20 to learn this technique and bring it into your organization!

Thomas M. Darrow is the Founder and Principal of Talent Connections, LLC, Career Spa, LLC, and the Atlanta HR Prayer Breakfast, Inc.

Tom has over 23 years experience in the Human Resources and Recruitment profession — including 9 years with the global professional services firms of Price Waterhouse (now PricewaterhouseCoopers) and Andersen Consulting (now Accenture).  He was the 2006/2007 President of SHRM-Atlanta, the largest city Chapter in the country.  Under his leadership as President, SHRM-Atlanta’s membership increased 60% to over 2600 members and the Chapter won a SHRM Pinnacle Award for membership growth and a Pinnacle Award for the Mayor’s Youth Program.

Tom earned a Bachelor of Business Administration degree in Accounting from the University of Notre Dame.   He currently resides in Murphy, NC and Smyrna, GA with his wife Anne and their three dogs and parrot.  Tom enjoys golf, Notre Dame football, Christian music, shows at the Fox and Alliance theaters, eBay shopping, spending time with family and friends, and comedy.  In 2004 he made his stand-up comedy debut at The Punch Line, the premier comedy club in the Southeast.  Tom is an originating shareholder of the 13-time World Champion Green Bay Packers.

Prior to this year’s Super Bowl, New England Patriot quarterback Tom Brady was considered by many to be the greatest quarterback of his generation, and possibly one of the greatest quarterbacks in NFL history.  But with the Patriots loss to the New York Giants, Brady’s legacy is taking a beating.  Numerous sportswriters, sports talk hosts and bloggers have railed on Brady, blaming him for the loss.  Brought into question now are his heart, skill and ability to win another Super Bowl.

While arguably Brady did not have his finest performance in the Super Bowl, the degree of criticism appears to be overblown and misplaced.  Forgotten by the critics is the fact that Brady led his team in two consecutive scoring drives just before the end of the first half.  The latter drive started on the Patriots’ 4 yard line and ended up being the longest touchdown drive in Super Bowl history.  Had the Patriots remained pinned down deep in the own territory, the Giants would likely have received the ball with great field position and with the opportunity to score and change the complexion of the game entirely.  Brady also completed 16 straight passes during one stretch in the game.  Not too shabby.  While Eli Manning’s performance was considered great (30/40, 296 yds, 1 TD), Brady’s Super Bowl statistics (27/41, 276 yds, 2 TD, 1 INT) were similar to Manning’s.  Washed up you say?  Brady also threw an amazing 39 touchdowns this year and racked up 5,235 passing yards which, if it were not for Drew Brees’ season would have established a new single-season record.

Despite these facts, the overwhelming buzz is that Brady is now a failure and an underachiever, especially in big games.  In this case, the sport cliché of “defense wins championships” has vanished much like the vampires that looked into a set of Audi LED headlights during a Super Bowl commercial.

From a human resources perspective, there are lessons to be learned from Brady’s overnight transformation from legend to goat.  There are parallels between how Brady is being assessed and common mistakes employers make when conducting performance evaluations.  These mistakes include basing evaluations on emotion, ignoring objective criteria, placing too much weight on recent events and being inconsistent in rating similarly situated employees.

Here are five (5) tips employers should follow to ensure that employee evaluations are fair, accurate and productive:

1. Performance Reviews should be based facts and not emotion: As a threshold matter, a supervisor conducting the evaluation needs to have an understanding of the employee’s actual performance.  The assessment should be based on facts as opposed to assumptions, rumor, innuendo or emotion.  In other words, do your homework.
2. Use Objective Criteria: Focus on whether the employee is performing the requirements of the job, such as quality and quantity of production.  Subjective characteristics such as an employee’s attitude are important and should be considered, but negative ratings about these characteristics should be supported by evidence showing how the conduct impacted the organization and other team members.
3. Consider the Entire Evaluation Period:  An annual evaluation should be based on the entire year.  Avoid placing too much weight on recent events or performance.  Feedback should be given on a regular basis.  If the employee is effectively managed, there should be no surprises when the annual evaluation is issued.
4. Be Consistent:  The supervisor should evaluate employees in an objective and consistent manner.  Develop criteria and use it for every employee.  This will protect against claims of favoritism or unlawful bias.
5. Be Positive:  The purpose of an evaluation should be to motivate your team member to improve.  This will not happen if only negative comments are provided.  This does not mean you should sugar coat problems.  However, you should give appropriate praise to areas where the employee succeeded.  This will also help show that the evaluation was fair and unbiased.

Perhaps if the pundits would have followed some of these suggestions, the post game analysis would have been different and, in my opinion, more fair.

You can see Ken’s session, A Sport Fan’s Guide to Human Resources, at the 22nd Annual SHRM-Atlanta HR Conference at the Cobb Galleria Centre in Atlanta, March 13-14th, 2012.

Ken N. Winkler is a shareholder of Berman Fink Van Horn P.C.  Ken’s practice concentrates on advising entrepreneurs, business owners and companies regarding the numerous employment laws and regulations that govern the workplace.  Ken’s practice also includes representation of both plaintiffs and defendants in disputes involving restrictive covenants including non-compete, non-solicitation of customers, non-recruitment of employees, non-disclosure/confidential information and trade secrets provisions.  Ken obtained his J.D. from The Ohio State University Moritz College of Law and his Bachelor of Science in Business Administration, summa cum laude, from The Ohio State University.

How wellness and advocacy keep employees focused on their jobs

It’s not “new news” to hear the staggering statistics on the time employees spend on personal matters at work.  Estimates range from 45 minutes per day, up to 3 hours.  In dollars and cents, we’re talking about millions in lost pay each year.   So what are employees doing with their time, and how can you help them… help themselves?

How healthcare & insurance complicate life

Think about the number of complexities we’ve introduced to employees over the past 15 years.  Co-pays and co-insurance came first.  Then high deductible plans, HSAs, HRAs.  Let’s not forget COBRA, FSAs, HIPAA.  Then add in a healthy serving of PHI and an SOB (that’s a Statement of Benefits!) Finally, top it all off with the crème de la crème – healthcare reform.

Voila!  We’ve created a system of healthcare (and access to care) that’s about as easy to understand as quantum physics. As human resource executives, you have a leg up.  You understand the complexities and you’ve got access to information employees don’t have.  Or do you?  I’d venture to say that even the most well-schooled among us have our own challenges weeding through healthcare and benefits issues.  So, we have to empathize with the average Joe.  Have we failed to make available resources to help employees navigate this complex territory?  After all, good health is the most fundamental and pivotal factor in productivity.  So we all stand to gain by keeping employees healthy and happy.

Why good health can be hard to come by

Even with the best intentions, taking good care of yourself and your family isn’t always easy.  There are a number of things that get in the way.  The most important factor that keeps many of us from peak health status is time.  Quite simply, there’s not enough of it.  And when you’re taking care of yourself and a family, and dealing with a down economy, making time for good health comes at a premium.  Many of our employees are taking care of parents and in-laws, and if they too have health issues, that’s incredibly time consuming to manage.

Would you venture a guess at how much work time is used to handle health or benefit issues?   In an average day, a cross-section of your employee population is trying to handle these problems.  And they are doing it on work time – because time is at a premium.

Huddled in their cubicles, or in their cars in the parking lot, you can hear the quiet clamor, each employee with a different story:  “Why was this claim denied?  I owe you what?  Asthma?  How will I find the right specialist in-network? Mom’s moved in… I need to find all new doctors to treat her diabetes close to our home.”  How incredibly stressful for employees who want to do their job well, and balance work with family!  Can you say, “PRESENTEEISM?”

How HR can help

When you stop to think about it, there’s a huge gap to be filled.  Your staff is at capacity.  But if you’re like me, you’re serious about taking good care of your employees.  And that means, even though you’ve got a line out your door, you won’t install a “Take a Number” dispenser.

High performing companies have HR leaders who are thinking about the future. They are delivering CEOs strategies for keeping employees focused.  Many are enrolling the help of care management and advocacy services to get employees back in the game.  These companies work on behalf of your employees and are typically paid on a per employee per month basis.   Care management firms put a third party partnership in place, so there’s no issue with HR staff and PHI.  An added advantage is that it’s all confidential, and employees feel comfortable knowing that.  They extend your resources in their areas of expertise, so you can focus on reaching your strategic goals.

They provide both benefits expertise, as well as clinical resources like health coaches, nurses and dieticians.  These partnerships can help design your population health strategy and incentive structure, set up health screenings and follow-up plans, help research claims issues, clarify benefits, help an employee understand a recent diagnosis and even coordinate care for elderly parents.

The idea is to get employees healthy, give them resources to help them reach their personal goals, and take down the barriers that are keeping them from being able to be fully engaged and productive.

As you look ahead to 2013, you’ll implement key strategies to impact your employees’ productivity and your companies’ profitability.  Consider affordable alternatives to adding staff – - while saving time, and actually improving employee health.

Be sure to Doug’s session, Be the Best – Learnings for HR Leaders to Create a Best Places to Work Company, at the 22nd Annual SHRM-Atlanta HR Conference at the Cobb Galleria Centre in Atlanta, March 13-14th, 2012.

Douglas Layman is the Executive Vice President and Chief Sales and Marketing Officer at Gilsbar, Inc., one of the country’s largest and fastest growing privately-held health and benefit management organizations.  He is responsible for Gilsbar’s corporate direction, vision and sales strategy for its three divisions:  Health & Benefit Management, MedCom Care Management and Care Advocates.

Mr. Layman shares his expertise in human resources leadership, creating a culture of health, and population health management at conferences across the country.  He was recently interviewed by SHRM Online and National Public Radio (NPR), authored an article in Human Resource Executive magazine titled “More HR Reach and Employee Focus”, and co-authored a recent article in CDHC Solutions magazine titled “Engaging Employees Vital to Health Care Strategy.”  His speaking resume includes events such as world Health Care Congress, Society of Human Resources Management, the International Institute of Research, and the National Business Group on Health.  Mr. Layman currently serves on the Board of Directors for the Louisiana Association of Health Plans.  He earned his degree at Spring Hill College in Mobile, Alabama.

Within the last three months, a number of court decisions, agency rulings, and new regulations have generated confusion regarding arbitration agreements and policies.  Until recently, one of the benefits of arbitration was the possibility of avoiding class and collective actions.  Given recent rulings, that might not be a viable strategy anymore.

The pendulum began swinging in April 2011 with the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 563 U.S. ____ (2011).  That case upheld an arbitration agreement with cell phone customers that required individual—not class—arbitration.  The pendulum swung even further in December 2011 when FINRA expanded its rules prohibiting class actions to also prohibit collective actions.

But the pendulum swung back the other way when the NLRB ruled in D.R. Horton, Inc., 357 NLRB No. 184, that it would be an unfair labor practice to deny employees the right to bring or participate in class or collective actions in any forum.  The NLRB started with the proposition that filing and joining class and collective actions is a protected, concerted activity under section 7 of the NLRA.  Then, the NLRB noted that the company’s mandatory arbitration program worked in conjunction with a class action waiver to deny any forum to employees for their class or collective actions—they could not go to court because there was mandatory arbitration, and they could not go to arbitration because there was a class action waiver.  The NLRB suggested that if employees were not put between this rock and hard place, no unfair labor practice would have occurred.

The pendulum swung back towards employers on in late January 2012 when the Central District of California upheld a class action waiver contained in an employment agreement in Johnmohammadi v. Bloomingdales, Inc.  In that case, the Court found it important that the employee had voluntarily agreed to the class action waiver in arbitration, and it was not a condition of employment.  Perhaps if the arbitration agreement containing a class action waiver had been a condition of employment, the Johnmohammadi case would have come out differently.

In any event, employers are left with little to go on in designing an arbitration program or evaluating one that already exists.  On the one hand, the Supreme Court has endorsed arbitration—even where class or collective actions are waived.  On the other hand, the NLRB has taken the position that employees must always have a forum (judicial or arbitral) for their class or collective claims.

Until the law is settled, employers should proceed with caution when drafting arbitration agreements or policies.  Express class-action waivers should not be used in employment agreements or employee handbooks in light of D.R. Horton.  Current arbitration programs that contain class or collective action waivers should be amended to avoid unfair labor practice charges.  Is it time to review your current arbitration program, or to draft arbitration agreements with your employees?

You can see Peter Hall’s session with David Long-Daniels, Information Privacy and Security — Working Remotely, Social Networking, Employee Monitoring and How to Avoid or Manage the Lawsuit That’s Coming, at the 22nd Annual SHRM-Atlanta HR Conference at the Cobb Galleria Centre in Atlanta, March 13-14th, 2012.

Peter Hall is an associate with Greenberg Traurig, LLP in Atlanta.  He focuses his practice on labor and employment law with an emphasis on litigation matters. He counsels both large and small employers on a variety of labor and employment issues, including avoidance of discrimination and retaliation claims, compliance with disability and medical leave requirements, wage and hour issues, employee termination, restrictive covenants, union avoidance, and elections and records retention. Peter has counseled and defended employers before state administrative agencies in Georgia and other states as well as before federal agencies, including the EEOC and the DOL. He frequently drafts employment, restrictive covenant and separation agreements, and has experience drafting and reviewing multistate and multinational employee handbooks.

Peter obtained his J.D. from Vanderbilt University Law School in 2004 and his Bachelor of Arts, summa cum laude, from The Ohio State University in 2001.  He is listed as a “Rising Star” in Georgia Super Lawyers magazine, 2012.

Unfortunately, many employers ignore or are simply unaware of their rights to protect the company’s assets beyond those established by contractual restrictive covenants.  In regards to employees who engage in unfair competition, Georgia laws, most other state laws and some federal laws offer a variety of statutory and common law protections beyond those provided by restrictive covenants.  These laws can be extremely valuable tools when either a restrictive covenant agreement is unavailable or the restrictive covenants at issue are potentially unenforceable.  While some Georgia experts would argue that these non-contractual protections are less important now that Georgia has significantly loosened the reins when it comes to the enforcement of contractual covenants (O.C.G.A 13-8-50 et seq), these non-contractual protections can also be extremely important as supplemental tools to the enforcement of contractual covenants.

Among these non-contractual protections are claims that the former employee breached his/her duty of loyalty and/or fiduciary duties owed to his/her former employer.  Most employees who are employed in positions where they are capable of damaging their employers through unfair competition owe a fiduciary duty and/or duty of loyalty to their employer, regardless of the existence of contractual covenants.  Essentially, these duties require employees to use their best skill and judgment to promote their employer’s interests during the term of their employment.  In other words, even absent a contractual commitment, an employee may not take certain actions contrary to his/her employer’s business interests while that employee is on the employer’s payroll.

Under Georgia law, a claim for breach of fiduciary duty requires the proof of three elements:  (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damages proximately caused by the breach.  Certainly, officers, directors and other higher level employees are bound by these fiduciary duties.  The fiduciary relationship can also be applied to other employees if a sufficient relationship of trust can be proven.  Furthermore, even absent a fiduciary duty, a duty of loyalty may similarly apply to lower level employees.

More specifically, the applicable Georgia law holds that an employee may, without breaching these duties, make plans to join a competing business while actively employed.  However, he/she may not engage in acts which are in direct competition with his/her employer’s business interests before the employment relationship ends.   Such unlawful acts would include solicitations of the employer’s clients and theft of the employer’s confidential information.  Even the solicitation of other current employees to leave the employer for a competitor may constitute a breach of one or more of these legal duties.

As discussed above, other non-contractual legal tools are available to employers.   These include:

1. The Uniform Trade Secrets Act (prohibiting the taking and use of information which satisfies the definition of “trade secret”);
2. The Federal Computer Fraud and Abuse Act (prohibiting the unauthorized access of, copying from or tampering with the employer’s computer system and/or data base);
3. The Georgia Computer Theft and Trespass Statute (companion statute to the federal Computer Fraud and Abuse Act described above); and
4. State tort claims related to the unlawful conversion of another’s property, theft of property by taking and the like.

So, here is the “bottom line.”  Employers should be aware of these non-contractual protections and use them if the situation warrants.  Employers should not abandon the protection of the Company’s assets just because restrictive covenants are nonexistent or unenforceable.  Immediately lock down the former employee’s computer and data records.  Conduct a detailed search for electronic documents showing or even tending to show that the employee solicited clients, solicited your other employees, sent confidential information or trade secrets to his/her personal e-mail and/or the like.  Interview other employees who were close to the former employee.  Gather as much evidence as possible to support non-contractual claims, supplement contractual claims or both.  Even if litigation is not in the employer’s best interest, evidence of wrongful competition while the employee was actively employed can act as invaluable leverage to secure a favorable out-of-court resolution.

Be sure to Jon’s session, The Emerging Pitfalls of the ADAA with a Focus on Expanded Leave Requirements, at the 22nd Annual SHRM-Atlanta HR Conference at the Cobb Galleria Centre in Atlanta, March 13-14th, 2012.

Jon M. Gumbel, Ogletree Deakins, has concentrated his practice in the field of management labor and employment law since 1987.  He advises clients on a daily basis regarding complex human resources, labor and employment law issues. Jon also regularly drafts and revises policies, procedures and contracts, including complex executive employment and restrictive covenant agreements for a wide variety of clients and applicable to jurisdictions throughout the country.