Workforce has announced the finalists for its 2019 Optimas Awards, which recognize creative people-management initiatives and human resources strategies that deliver measurable business results.

“For 29 years, the Optimas Awards have been a source of ideas, direction and inspiration for human resources professionals faced with a challenging and constantly changing business environment,” said Rick Bell, editorial director for Workforce. “This year’s list of finalists represents a wide range of enterprises that have consciously made human resources a linchpin of continuous improvement, higher performance and positive business outcomes.”

In addition to conferring gold, silver and bronze Optimas Awards in 10 HR-related categories, the prestigious General Excellence award will be given to a single visionary employer that “not only excels at responding to emerging workforce management issues but also uses proactive HR strategies to position the organization for future growth and success,” Bell said.

Read More: Meet the 2018 Optimas Awards winners.

The winners and their respective categories will be named in late October and will appear in the November-December issue of Workforce magazine.

The organizations named to the 2019 list of Optimas Awards finalists are, in alphabetical order:



Clemson University-Human Resources Department (Recruiting)

Columbus Zoo and Aquarium

Cumberland (Wisconsin) School District


DPI Specialty Foods

Hudson Valley Federal Credit Union

Interim HealthCare Inc.

LaSalle Network

Lawrence Livermore National Laboratory

Mercer Consulting (India) Pvt Ltd

O.C. Tanner

Panda Restaurant Group

Philanthropy U

Riverside (Illinois) Healthcare

Sagicor Group Jamaica Limited

Tata Consultancy Services

Teachers College, Columbia University


Ultimate Software

Valmont Industries Inc.

The post Workforce Magazine Names Its 2019 Optimas Awards Finalists appeared first on Workforce.

Executives are no longer reluctant to lawyer up. News reports on executive/employer contretemps at Papa John’s, Barnes & Noble, Uber and other companies have drawn press attention in the past year; countless other executive/employer disputes have flown below radar.

Underlying these controversies is the executive’s employment agreement, typically the most high-stakes and closely negotiated employment agreements to which companies will contract. Yet, these agreements often contain less clarity and less certainty than either executives or their employers need. Indeed, there appear to be three areas where these contracts could and should be upgraded. Let’s look at each.

Access the full article.

Originally published by Law360, February 2019.

Millennials are the driving force behind the booming wellness industry, embracing trends from meditation and holistic medicine to the latest tech gadgets and gear. Yet a growing number are facing middle age with more health problems than previous generations, according to recent studies.

In particular, older millennials — those between the ages of 34 and 36 — are seeing dramatic increases in the diagnoses of depression, diabetes, high blood pressure and hyperactivity, among other conditions, ac-cording to a new study of medical claims by the Blue Cross Blue Shield Health Index. A third of millennials have health conditions that reduce their quality of life and life expectancy, making them more likely than Generation X to be sicker when they’re older, the study showed.

The findings do not surprise Rachel Druckenmiller, 34, a wellness industry leader whose fast-track career nearly came to a halt when she was diagnosed with an autoimmune disease in 2017. She is a 2019 Workforce Game Changer and director of well-being at the Alera Group, a national insurance and financial services firm.

“In September, 2016, I had a dream that I was drowning,” recalled Druckenmiller, who was diagnosed with Epstein-Barr. “After that I started having trouble with my memory. My doctor said I was doing too much. A few months later I ended up with swollen lymph nodes and I lost my voice. I literally burned out.”

She blames the lack of meaningful social connection for many of the health problems facing her generation.

Of the top 10 health conditions effecting younger workers, more than half are psychological, with depression rates in-creasing 31 percent between 2014 and 2017, according to the Blue Cross study.

“There’s a perception that millennials are healthier because we’re into sustainability, yoga and cross-fit, but we’re also labeled the ‘anxious’ generation,” Druckenmiller said. “Chronic diseases start with psychological dysfunction.”

She urges employers to check in with their younger workers frequently and get to know what motivates and inspires them.

“They should ask them questions like, ‘What is the most important thing in your life outside of work? Are you able to use your strengths at work?’ People need to be heard.”

Also watch: Rutgers Assistant Professor Joni Dolce on Workplace Mental Health

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There are three focal points in every successorship case: (1) notice to the purchaser; (2) continuity of the business; and (3) the ability of the seller to provide relief.

Reading the tripartite test for successor liability, it is enticing to conclude that a deal is safe. This is what the Greeks called hubris. Remember Oedipus, who also thought he could escape the prophecy of his fate? Even when it appears one of those factors ought to result in a buyer escaping successorship liability, any reading of those factors needs to be grounded in the case law because it sweeps more than a literal reading of those tripartite factors might suggest.

Even a quick look at the case law reveals the magnitude of the doctrine’s scope.

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Originally published by Law360, July 2019.

In 2018, the Treasury Department and the IRS issued new hardship distribution rules applicable to defined contribution plans, and many plans have begun administering these new rules. While plan sponsors may want to wait for further IRS guidance before amending their plans, they should take steps now to inform employees of changes in hardship distribution administration.

Access the full article.

The US Supreme Court declined to review a recent Ninth Circuit decision, blocking the interim rules that exempted employers with religious or moral objections from providing birth control coverage required by the Affordable Care Act (ACA). Until such time as this issue is clarified, it is prudent for employers with employees in certain states to comply with the ACA mandate and to cover contraceptives under their health plans.

Access the full article.

Teal Trujillo, a summer associate in our Chicago office, also contributed to this article.

Americans lead the world in medical research and care, yet the U.S. preterm birth rate is among the worst of highly developed nations.

One in 10 babies in this country are born prematurely each year. In addition to the emotional toll that premature birth takes on families, it may also cost your company thousands of dollars each year. Expenses for childbirth and newborn care make up about 11 percent of what employers pay in health insurance costs; there are also the thousands of dollars in indirect costs because of absenteeism and lost productivity.

With 74.6 million women in the U.S. workforce, there is much that employers can do to support employees throughout pregnancy and increase profitability at the same time.

pregnancy discriminationMarch of Dimes offers Healthy Babies Healthy Business, an educational wellness program originally created in 2007 that supports mother and baby health and promotes a family-friendly work environment. More than 540 companies signed on for the original version of the program, including big names such as Ebay, Walmart and Microsoft. During July, March of Dimes is launching a new, refreshed version of Healthy Babies Healthy Business.

The program is easy to manage, implement and promote, and it provides organizations with a wealth of information to support employees before, during and after their pregnancy, such as six interactive learning modules and a content library of more than 250 March of Dimes articles and videos on topics such as preconception planning, learning the signs of preterm labor and breastfeeding.

Employers can customize Healthy Babies Healthy Business and add company-specific content and resources. And as a partner of March of Dimes, employers demonstrate that they share our belief that all moms and babies deserve the opportunity to be as healthy as possible.

Using Healthy Babies Healthy Business puts this belief into action, protecting the well-being of employees and their families. The cost is a one-time $2,000 onboarding fee and $15 per registered user.

March of Dimes is a champion for families, fighting for the health of all moms and babies in communities like yours and across the country.

Healthy Babies Healthy Business is a way to support employees during their pregnancy journey while ensuring that all moms and babies get the best possible start.

The post Healthy Babies Healthy Business Program Gets a Refresh appeared first on Workforce.

During a pre-employment medical examination and drug screen, an applicant tests positive for Alprazolam, the generic form of Xanax (a medication commonly prescribed for anxiety), a fact she had already disclosed during the examination.

The doctor performing the medical exam and reviewing the drug screen concludes that the applicant is medically acceptable for work as an intake specialist at an inpatient mental health facility. The employer, however, has other ideas. It withdraws the job offer without providing the applicant any opportunity to discuss the results.

The applicant sues, claiming disability discrimination.

Who wins?

(a) The employer, because the ADA permits pre-employment medical examinations and drug screening, and further because there exists a nexus between the applicant ’s underlying mental impairment (anxiety) and her fitness to work at a mental health facility.

(b) The employer, because the ADA only protects physical and mental impairments, not drugs used to treat them.

(c) The applicant, because the employer conducted an illegal medical examination.

(d) The applicant, because the only logical explanation for rescinding a job offer after an applicant tests positive for a prescription drug commonly used to treat anxiety is that the employer regarded the applicant as disabled.

While we may eventually find out the official answer to this puzzle (the EEOC recently filed suit alleging an ADA violation arising from these facts), if you answered (d), grab yourself a Kewpie Doll.

Still, the answer might not nearly be this cut-and-dry. The ADA is remarkably silent on the issue of testing for legally prescribed medications.

generic drugsThankfully, courts have stepped in to fill in the ADA’s omission. For example, Bates v. Dura Automotive Sys. (6th Cir. 8/26/14) [pdf].

1. Does the ADA permit an employer to test for prescription medications?

Whether the ADA permits an employer to test employees for prescription medications will hinge on whether the test is a “medical examination.” If the test is a “medical examination,” then the ADA only permits it during employment if the test is “job-related and consistent with business necessity.” According to the Court, whether the prescription-drug screen is a “medical examination” will hinge on whether the test “is designed to reveal an impairment or physical or mental health,” which examines both the employer’s reasons in using the test and the test’s typical uses and purposes.

2. Does the ADA permit an employer to require employees, after a positive test, to disclose medications to a third-party administrator?

The court concluded that there exists a huge difference between a general requirement that employees disclose a list of all prescription medications taken (possibly illegal), versus a policy that only requires the disclosure of job-restricted medications after a positive test.

How can an employer make sense of this discussion? These are difficult issues that balance an employer’s right to maintain a safe workplace against an employee’s right to medical privacy. What is an employer to do?

    1. Limit testing for the use of prescription drugs to safety-sensitive positions, and then only for those medications that could pose a safety risk.
    2. Do not ask employees to disclose the underlying medical condition for which they are taking the medication.
    3. Be consistent in your treatment of employees who test positive.
    4. Only disclose the results to those who need to know.

In conclusion, I want to focus for a moment on point No. 1 — limit testing for the use of prescription (any?) drugs to safety-sensitive positions and then only for those medications that could pose a safety risk.

Unless one is applying for a job that poses a safety risk, why are we drug testing at all? If you don’t want those who use illegal drugs to work for you, I get that.

That’s your right and your decision. But prescription drugs?

What are you hoping to learn from those tests? Unless you have a legitimate reason to hunt for medications that could impair an employee’s ability to safely perform their job, the risks of the test severely outweigh any benefits to gain.

You’ll learn a heap of protected medical information (or make assumptions based on the physical or mental impairments the drugs are used to treat). Either way, you are opening yourself up to a difficult disability-discrimination lawsuit if you rescind a job offer, as Rogers Behavioral Health in the lawsuit the EEOC recently filed.

Is this risk worth the minimal benefit?

The post Why Are Employers Testing Job Applicants for Prescription Medications? appeared first on Workforce.

IBM estimated last year that data breaches cost companies $148 per stolen record. Given that, not surprisingly, many employers have grown increasingly concerned about the potential impact of such breaches, including breaches that may affect employer-sponsored benefit plans.

Courts have not yet formally addressed whether ERISA requires benefit plan fiduciaries to manage cybersecurity risks. However, a federal district court recently rejected a motion to dismiss filed by defendants seeking to avoid liability for fraudulent distributions from a plan caused by cyber criminals. There, the court held that the defendants were plan fiduciaries and that the plaintiffs had pled facts sufficient to allege that the defendants breached their fiduciary duties. Although this decision only relates to a motion to dismiss, the case underscores the potential for plaintiffs to assert, even in the absence of clear guidance, that plan fiduciaries are not doing enough to protect plan participants from cybersecurity risks.

As a result, with cybersecurity concerns on the rise, plan fiduciaries are continuing to enhance their focus on the best ways to protect employee data. Recently, on Law360, McDermott’s Mark E. Schreiber discussed four helpful tips for handling cybersecurity risks.

Access the article.

Indisputable fact No. 1: Women and men should earn the same pay for the same work.

Indisputable fact No. 2: The players on the United States women’s national soccer team earn substantially less than their counterparts on the men’s team

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles.

The Act is a strict liability law, which means that intent does not matter. If a woman is paid less than male for substantially similar work, then the law has been violated, regardless of the employer’s intent.
This strict liability, however, does not mean that pay disparities always equal liability. The Equal Pay Act has several built-in defenses, including seniority, merit, quantity or quality of production, or any other factor other than sex.
Which brings us to indisputable fact No. 2, and the stadium chanting “equal pay.”
Two things of note happened in the U.S. soccer world on Sunday. The women won their fourth World Cup title, dominating the entire tournament, including the Netherlands 2-0 in the final. Meanwhile, the men lost the CONCACAF Gold Cup final 1-0 to Mexico.
The women’s team currently is engaged in a gender discrimination lawsuit against the United States Soccer Federation, claiming that the organization pays its male players way more than its female players. How much more? According to documents obtained by the Guardian, for example, each player on the U.S. women’s national team could receive more than $260,000 for winning the Women’s World Cup; each player on the men’s national team could earn more than four times that amount for winning the World Cup.
Last I checked, $260,869 does not equal $1,114,429. That’s a pay gap. Which could be legal under the Equal Pay Act, but only if it’s based on a factor other than sex. And this is where I plead ignorance. U.S. Soccer says that any pay differences are “based on differences in aggregated revenue.” I have no idea whether that’s true or false, but if true it might qualify as a “factor other than sex.”
What I do know, however, is that U.S. Soccer cannot justify these pay differences based on merit or success. The FIFA Women’s World Cup has been held eight times — the U.S. women’s team has won four of them, and has never placed worse than third. In the same time frame, the men’s team failed to even qualify for the 2018 World Cup and has never finished better than the quarter-finals (once, in 2002). The U.S. women have also won four Olympic gold medals, nine out of 10 CONCACAF Women’s Gold Cups, and are the No. 1 ranked team in world.
And, on the same day the women’s team won the World Cup, the men’s team lost the CONCACAF Gold Cup final (no offense to North American. Caribbean, and Central American soccer, but winning the CONCACAF Gold Cup is the equivalent of a AAA baseball team winning its league — it’s nice to win, but you’re not beating the best players on the best teams in world).
Based on results, it seems to me that not only should the women’s team be paid equally with the men’s team, but that there exists a great argument for the scale to be flipped, with the women’s team earning substantially more than do their male counterparts.
So, soccer fans and legal scholars, educate me. Why are the women paid so much less than the men?
I want to understand. Help me understand.

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