Hello WCASHRM Members,
It’s July!! Where has the year gone? I hope this letter finds each of you healthy, safe, wearing masks and social distancing. Thank you, Maggie Young, for speaking on Mental Health in The Workplace last month.
Greg Northen with Cross, Gunter, Witherspoon & Galchus will speak on DOL Lawsuits, July 28, at 11:30 am. Please be sure to register. WCASHRM will schedule monthly webinars in place of our in-person meeting for the rest of 2020. Please contact Shayne King if you have a speaker interested. The webinars have been a great success, and we appreciate our members and guest’s participation.
Help our community and children that are hungry by donating to Project Hope Food Bank. Many families are struggling to keep food on the table during this pandemic. You can also mail a monetary donation to: WCASHRM, PO Box 8, Hot Springs, AR, 71902.
It’s time to nominate or volunteer for roles on the 2021 WCASHRM Board of Directors with incoming President, Kelli Burris. You can download the form to nominate and for more information about each position.
Here are some resources that I think might be of interest to you:
Screening for Applicants’ COVID-19 Concerns: Can You? Should You? By SHRM
Return to work resources:
AR Economic Development -COVID-19 Resources for Businesses
ADH - COVID-19 Guidance for Employers
Wage & Hour Compliance and Recent Litigation Trends with Greg Northen
JUly 28, 2020, 11:30 A.M. - 1:00 p.M.
VIRTUAL - WATCH FOR THE WEBLINK
Join Attorney Greg Northen for an overview of recent changes to federal and Arkansas wage laws, as well as an overview of recent federal litigation and DOL enforcement trends. Come prepared for a discussion-styled meeting as questions are encouraged and expected! Specific topics include:
- Recent Rule Changes on Joint Employment, Bonuses, and Salary requirements;
- U.S. DOL Enforcement Trends in Arkansas;
- Collective Action Overview and Litigation Trends; and
- Best Practices for Compliance.
GREG NORTHEN is a Director in Cross, Gunter, Witherspoon & Galchus, P.C.’s Little Rock office. His practice areas include labor and employment defense, wage and hour, public housing (HUD) compliance, and business litigation. Greg’s experience includes practicing before federal and state courts in Arkansas, the Eighth Circuit Court of Appeals, and various federal and state agencies, including the Equal Employment Opportunity Commission, National Labor Relations Board, Department of Labor’s Wage & Hour Division and Arkansas Department of Workforce Services. He also assists clients with drafting and implementing up-to-date policies, procedures, and training materials for various labor and employment issues.
Greg recently completed his term as District Representative for Arkansas and Oklahoma to the American Bar Association's Young Lawyers Division (ABA YLD) Council, and he currently serves as Chair of the ABA YLD’s Labor & Employment Committee, as well as various appointed positions with the Arkansas Bar Association. He also sits on the State Board of the Associated Builders and Contractors of Arkansas. Greg is the past-Chair of the Arkansas Bar Association’s Young Lawyers’ Section, a Past-president of the Maumelle Chamber of Commerce and has been named a “Rising Star” by Mid-South Super Lawyers each year since 2014. He is a graduate of Harding University and the University of Arkansas School of Law.
1 hour SHRM PDCs and HRCI credit is approved.
WCASHRM is recognized by SHRM to offer Professional Development Credits (PDCs) for the SHRM-CP or SHRM-SCP.
The use of this seal confirms that this activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.
Stability. Experience. Dedication. Founded in 1922, McGriff Insurance Services is a subsidiary of BB&T Insurance Holdings, Inc., the fifth largest insurance broker in the United States and the sixth largest in the world. We partner with the very best insurance companies to provide highly consultative risk management services and nearly all types of coverage—including personal, small business, corporate, employee benefits, and life and health. Our experienced insurance and risk management professionals develop highly tailored services and deliver them based on a proprietary and proactive approach we call Client Focused Risk Solutions.
We combine a consultative approach with a clear understanding of how and when to deploy McGriff’s vast resources.
-We listen, understand and execute with precision
-We do what we say every single time
-We are passionate and relentless about making our clients successful
When you choose us, you’ll be joining thousands of other individuals and business owners across the country who made the decision to select a national agency that focuses on long-term relationships.
Watch for more details of a virtual offering for our annual Managers Seminar.
Title VII Prohibits Discrimination Because of LGBTQ Status
In a significant expansion of civil rights protections, the U.S. Supreme Court ruled on June 15, 2020, that the prohibition against gender discrimination in Title VII of the Civil Rights Act necessarily extends to prohibit discrimination based on sexual orientation and transgender status.
Although the Court guaranteed Americans the right to marry regardless of sexual orientation in 2015, more than half of U.S. states lacked any legal protection from discrimination in the workplace on these characteristics until today's landmark decision. Arkansas is among those states that currently does not explicitly include sexual orientation and gender identity in state anti-discrimination laws. Title VII applies to "employers" with 15 or more employees, but the Arkansas Civil Rights Act, which applies to "employers" with 9 or more employees, follows Title VII standards.
In arriving at its decision, the Supreme Court considered three conflicting cases from the Second, Sixth, and Eleventh Circuits to address whether the term "sex" in Title VII includes sexual orientation or transgender status. Conservative Justice Neil Gorsuch wrote the Court's opinion and explained that although the lawmakers who wrote and adopted the Title VII may not have imagined this result, the text of the law is clear, and "all persons are entitled to its benefit."
Notably, while the Court acknowledged that religious employers may raise legitimate arguments over the intersection of this interpretation of Title VII and religious liberties in future cases, none of the employers considered in this opinion proved valid defenses under the Religious Freedom Restoration Act. As a result, any covered employer who takes an adverse employment action against an employee because of an applicants' or employees' sexual orientation or transgender status is in violation of Title VII.
While some employers currently include protections for sexual orientation and transgender status in their anti-discrimination policies, all employers will now need to update their handbooks and anti-discrimination policies accordingly.
Governor Hutchinson Signs Three Executive Orders Concerning COVID-19 Liability and Workers' Compensation Coverage
On June 15, 2020, Governor Hutchinson declared and signed three executive orders regarding (1) business liability, (2) medical immunity, and (3) workers' compensation coverage.
Executive Order 20-33 provides that all businesses that are currently open or remain open during the COVID-19 emergency as well as their employees are immune from civil liability for damages or injuries caused by or resulting from exposure to COVID-19. The immunity does not apply to willful, reckless, or intentional misconduct. However, it is presumed that the actions of a business and its employees are not willful or reckless if the business owner substantially complies with public health directives. The immunity is effective from June 15, 2020-the date of the Executive Order-until the emergency is terminated. The immunity does not extend to workers' compensation benefits, meaning employees may still file for those benefits (as discussed in Executive Order 20-35).
Executive Order 20-34 authorizes health care workers and providers to use crisis standards of care to respond to treat COVID-19 patients. As emergency responders, these health care workers and providers are immune from civil liability for actions taken in the course of providing COVID-19 related treatment during the public health emergency. Such immunity does not extend to any act or omission that is willful, reckless, or intentional misconduct.
Executive Order 20-35 assures workers' compensation coverage for employees during the COVID-19 public health emergency. Under the executive order, COVID-19 is considered an occupational disease under the law, and an exception to the prohibition on compensation for ordinary diseases of life. A causal connection between employment and the disease is required for workers' compensation coverage. The executive order applies to all claims filed after June 15, 2020 and expires automatically upon termination of the emergency.
These Orders are clearly designed to limit the potential for civil lawsuits stemming from businesses opening to employees and the public. It is important to note that business liability may still exist where a company permits reckless acts or does not sufficiently adhere to state and federal health guidelines relating to returning employees, guests, and customers to a work location. Contacting your workers' compensation carrier to discuss your business's policy, if applicable, may also be important in light of these orders.
Furloughed Employees Must Return to Work When Recalled
As we advance through phases of reopening businesses, employers who temporarily laid off or furloughed employees may be ready to recall those employees to work. Many employees are eager to return to their pre-COVID-19 jobs and schedules; however, some may resist returning to the workplace.
The Arkansas Division of Workforce Services (DWS) issued guidance this week regarding an employee’s refusal of an offer to return to work. If a temporarily laid off or furloughed employee is called back to work and offered his or her normal rate of pay and number of hours per week, that employee must not refuse the offer of work. If the employee refuses the offer to return, the employer may terminate his or her employment, and the terminated employee may lose eligibility for unemployment benefits and may be required to repay certain benefits.
Employers must report any employee’s refusal to return to work to DWS by mailing a letter to their local office or sending an email to [email protected], including the employee’s name and the last four digits of his or her Social Security number.
Despite the DWS’s guidance, the Americans with Disabilities Act (ADA) may protect some employees who are not willing to return to work. Specifically, if an employee refuses to return to work due to an impairment that may qualify as a disability, the employer may be obligated to provide the employee with a reasonable accommodation under the ADA. For example, if an employee has a compromised immune system that increases the risk of contracting COVID-19 in a communal workspace, that employee might request an accommodation to work from home. If an employer can provide an accommodation without undue hardship, it should consider doing so.
Additionally, employees of most public employers and private employers with fewer than 500 employees may be eligible for leave under the Families First Coronavirus Response Act (FFCRA) which entitles employees to paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The FFCRA does not apply to temporarily laid off or furloughed employees, but it does apply once employees return to work.
Bruce Cross, CGWG | WCASHRM Legislative Director
Apply for the SHRM-CP or SHRM-SCP exam today. Non-SHRM Members can save $75 with early-bird pricing! SHRM MEMBERS CAN SAVE $100 ON EXAM FEES.
PLUS, Applicants now have the option to test from home.
EXAM WINDOWS AND FEES
For those that did register for the Spring Testing Window, you have until August 15, 2020 to test for your exam.
Although the deadline to register for the Spring Testing Window has ended, you can still plan to register and study to test during the Winter Session. Applications for the winter testing opened up on June 1st. Early-Bird Registration deadline is October 16, 2020 and Standard Application Deadline is December 1, 2020. The Winter Testing window is December 1, 2020 - February 15, 2021.
In response to COVID-19 SHRM is also offering Remote Proctoring
Effective June 1, SHRM began offering the option for exam applicants to test from home, through live remote proctoring. You can learn more by checking out the SHRM website.
DID YOU KNOW?
SHRM FOUNDATION offers various professional development and certification scholarships as well as SHRM Certification Professional Development Grants. The deadline for the grant is fast approaching (August 2), so, if interested, don’t delay on getting your application in. Check out the SHRM website for more information and eligibility requirements.
Help our community and children that are hungry by donating to Project Hope Food Bank. Many families are struggling to keep food on the table during this pandemic. You can donate on the Project Hope website or you can also mail a monetary donation to: WCASHRM, PO Box 8, Hot Springs, AR, 71902, and we'll mail the collected donations on our chapter's behalf.
We would love to grow our chapter. If you are a SHRM member without a chapter affiliation, WCASHRM dues are free for SHRM Members who designate WCASHRM (#0467) as their primary chapter. You can complete the application and email it to [email protected]. https://wcashrm.starchapter.com/downloads/Membership/2020_wcashrm_membershipapp.doc New this year! Checkmark auto renewal on the form, and you'll never have to complete the form again!
NOT YET A CHAPTER MEMBER OR UNSURE ABOUT RENEWING? Here are a number of ways that WCASHRM benefits you:
- An opportunity to network on a monthly basis with local HR professionals.
- Regular legislative updates in the industry, community, state and federal levels.
- Recertification credits at our chapter meetings and annual Managers’ Seminar.
- Free access to our monthly webinars since monthly meetings have moved virtual because of COVID-19.
- Monthly topics that are relevant and of concern to Human Resource professionals.
- Monthly newsletters with information relating to the chapter, SHRM and HR industry.
- Participation in local workforce readiness activities.
- Certification study groups.
- The opportunity to post jobs at no cost on our website.
REFER A MEMBER!
We hope our membership will refer contacts to join the chapter or send me their contact information and I'll reach out to him/her.
Have a local membership only? Consider joining SHRM for access to thousands of essential resources to help you stay at the forefront of the HR profession. For more information, visit SHRM’s Membership Page.
If you have any questions, please don’t hesitate to contact me by clicking on my name below or calling me at 501-624-2172.
- Tara Mauk Arthur | VP of Membership
Overcoming Workplace Bias
Visit SHRM's related resource pages on Organizational Culture, Pay Equity, Ageism and Harassment and Bullying.
Communicable diseases like coronavirus and the respiratory illness it causes, COVID-19, can bring a busy workforce to a standstill. Look HERE for the latest news and updates, as well as critical member-only resources. In addition, here is key information to help you to work your way through the pandemic:
- Review our coverage most read by SHRM members, plus a complete list of all content we’ve published on COVID-19.
- Visit our resource page on Remote Work guidance and best practices.
- Compare policies regarding layoffs, furloughs and pay cuts on the Employee Termination and Layoffs resource page.
- Explore SHRM's COVID-19 Express Requests to learn about the CARES Act and much more.
Just in! FACE COVERINGS MANDATE
Governor Asa Hutchinson issues Executive Order regarding Face Coverings will be required statewide starting July 20 to help prevent further spread of the coronavirus. Click here for the Executive Order.
Arkansas Unemployment Fraud Update
This is to provide an update to you since the last Arkansas SHRM bulletin dated 7-2-2020. You may be aware that fraudulent unemployment claims are being filed via Arkansas Department of Workforce Services (ADWS). It appears that an individual’s identity is stolen and an unemployment claim is opened for the individual. The unemployment claim will typically instruct ADWS to send the benefits to the fraudster’s bank account.
Arkansas SHRM met with the Director of ADWS, Dr. Clarisse Childers and her staff regarding unemployment insurance concerns, and offered suggestions on stopping the potential fraud. Unfortunately, because of the COVID-19 pandemic, checking photo identification and the waiting period was eliminated sometime in March. We are hopeful that these procedures are reinstated very soon. Since the Department was alerted to the fraud, they have flagged over 20,000 claims for fraud. If a claim is marked as potential fraud, the individual is being asked to provide a government issued photo identification at their local DWS office. DWS advises that employers should respond to the Notice to Last Employer or Notice to Base Period Employer, as well as report the possible fraud to ADWS as detailed below.
Since our last update, we have been advised that if a claim is marked as fraud, there will not be a charge against the employer. At the time of this information, it is understood that the ADWS will issue a 1099 to the employee/claimant unless the police report and copy of the Government issued ID are provided to ADWS.
Employers should monitor and take actions to protect their unemployment accounts. This would include watching and responding to each claim filed: 1) Notice to Last Employer and 2) Notice to Base Period Employer and 3) reviewing the quarterly charge statement upon receipt.
Employers should communicate with ADWS regarding suspicious claims or other suspicious activity in their ADWS account. Reports of possible fraud should be filed with the division on their website, dws.arkansas.gov, by telephone at 501-682-1058, or by email at [email protected].
In addition, ADWS provided a document regarding the steps that employers and individuals should follow regarding the potential fraud. Because the individual is a victim of identity theft, he/she should file a police report to include unemployment fraud.
When fraud is suspected, employers should get a written statement from the employee, a copy of the government issued photo ID, and a police report filed by the employee.
ADWS does not issue a determination, so the employer will have to monitor their quarterly charge statement and if a charge for a possibly fraudulent claim appears, challenge that charge, provide documentation, and wait for the ADWS determination. No further appeals are available at the ADWS level, so it is important that employers thoroughly investigate the fraud and report all findings to ADWS both at the time the claim is answered and again if a challenge to the quarterly charge is necessary.
Any employer who is not currently enrolled with the ADWS online system for unemployment claims is strongly encouraged to register for immediate notification of filed claims.
As more information becomes available, we will update you.
ARSHRM Governmental Affairs Team