when disaster strikes will you be prepared?

– KPA CONFIDENTIAL –

When Disaster Strikes

Will You Be Prepared?

September 9, 2010

Welcome

Our Presenter:

Jim Hendricks is a partner with Ford & Harrison, LLP in Chicago. Jim is a Fellow of the College of Labor and Employment Lawyers and is listed among the Top 100 Labor Attorneys in the United States by the Labor Relations Institute. Ford & Harrison, LLP is a labor and employment law firm with a national practice in all aspects of labor and employment law.

Webinar Format:

During today’s webinar Jim will answer questions related to many of the most pressing HR issue dealerships face today. Pre submitted questions have been aggregated into the following sections:

• Recruiting and Hiring

• Performance Management

• Health and Safety

• Termination

• Compensation

• Administration and Recordkeeping

2– KPA CONFIDENTIAL –

Questions

• If you have questions

during the presentation,

please submit them using

the “Questions” feature

• Questions will be

answered at the end of the

webinar or an emailed

response will be provided

Recruiting and Hiring

• Must you give everyone an application so as not to discriminate? What if we do not have any open positions?

• What are the issues and concerns with accepting resumes, even if no available positions?

• Can you request a physical prior to an offer of employment?

• Do you recommend taking a resume or having applicants complete an application?

• Do we need to have a signed job application on each new hire?

• During an interview, can I ask if an applicant is currently receiving unemployment benefits? What if this question is being asked so that if there are two equally qualified applicants but one would qualify for a tax credit then we would like to hire the one who would qualify for the tax credit?

• Can I asked information about race, gender, disability, veteran status as part of the application process just to collect this information for my affirmative action plan reports?


Performance Management

• Do all employees need a job description?

• Should you provide all employees with a pay plan? Would it be okay to only provide to our sales team?

• Is it considered mandatory to reserve a position or a person's previous position if that person accepts a promotion in a different position? What happens if that person fails to do their job requirements in their new position, can we simply terminate them or must we move them back to the original position?

• We do not currently do a performance evaluation on employees. Can you discuss the pros and cons of performance evaluations?


Termination

• Can I fire someone when I have never given them a disciplinary warning?

• If an employee has called in sick but you find out they have been arrested for marijuana possession can you terminate them even if the have not been convicted?

• Service Tech was out on work comp claim along with two other techs. Those two now back. Have hired one new man to cover for the three that were out. Now last man returning next month, and there is no room for him. Can we lay him off? New man actually is much better tech and we would prefer to retain him.

• We recently fired an employee for poor performance but lost the unemployment hearing. We had not provided performance evaluation but the supervisor had warned the employee about his performance (not in writing). Can you provide some tips on how we can fire poor performing employees and not pay out for unemployment?


Health and Safety

• Can you require a drug test after an auto accident or shop accident even if the employee is union? The union said no but there is not a specific provision in our agreement related to substance abuse testing. We have a policy regarding pre-employment testing but not a specific policy for testing after an accident, however we are going to add a new policy if we can do testing when there is an accident.

• How can you put a stop to working carelessly and opening up workers’ comp claims. Some claims are not reported timely, can we deny them?

• We are located in Colorado, do I need to provide my employees with two choices for their occupational medical care for an on the job injury or illness?

• Can you discuss best practice for setting up a safety committee? We are union shop located in Illinois.


Compensation

• Please explain the difference between salaried and exempt- is it possible for an employee to be classified as non- exempt but be paid a salaried?

• Do salaried employees get overtime pay?

• Should holiday pay be included in the calculation of overtime for that week? What is the industry standard?

• Please address paying salaried exempt employee when vacation time is available? What is your recommendation for paying salaried employees when they take less than 4 hours or more than 4 hours off within a workday?

• I would like to discuss flux (flex) employees and paid time off when they are not here, what are your recommendations?

• Is it true that you can only pay a parts counter person that works retail salary and that the parts person who sells parts to the service department has to be hourly wage. Can a Parts Counter person be paid 100% salary -no overtime?


Compensation Deductions

• If a company is paying bonuses out for sales done in a previous month, and the employee is fired before the bonus is scheduled to be paid, are we obligated to pay the bonus money that they earned when they are fired?

• If you have overpaid an employee in their paycheck, is it legal to deduct that money back from them in subsequent paychecks?

• Say we have employees that are paid hourly+comission, they are set at a flat 40 hr week that is deducted from should they miss a day etc. but never added to when they work over that 40hrs, should we be paying overtime in that scenario?


Compensation for Meals and Breaks

• At our company there seem to be meal period debates that continue and everyone in the business (with differing understandings or interpretations of law) seems to think they're right. Washington state law words it in a manner that makes a 30-minute meal period (for over 5-hr shifts) SOUND like it's optional to the employee. However, our legal counsel suggests it is MANDATORY and the employer MUST provide it. Even if the employee fails to comply with known policy, the employer is the one punished if alleged violations are investigated and punished. If the employee wants to "opt out" of their lunch break, it is a day-by-day situation requiring a waiver acknowledgment signed by both the employee and their supervisor EACH TIME, indicating mutual agreement to the lunch waiver. Certainly an administrative headache! From an employer standpoint, managers need to set established schedules for adequate (customer) service and can't be left "wondering" if an employee (i.e., a cashier) is going to leave a half-hr early because they didn't take their lunch break -- on a Friday!. In other instances, an employee may regularly take only .2 or .3 or .4 hrs for lunch. Does this become a disciplinary issue, just like unauthorized overtime work? We're glad they want to get back to work because they enjoy their job so much, but in our litigious society, employment laws favor the employee, not the employer.


Sales Compensation

• If salesperson salary & commission do not equal the minimum wage-do you pay the difference?

• We have a salesperson who we pay a monthly $3,000 guarantee. They usually make an additional $1,500 in commissions for a total of $4,500 per month. They voluntarily works 6 days per week, 12 hours per day on an average. He does sign a time card weekly and initials that he does take a lunch break and morning and afternoon breaks. Are we compensating this employee properly because of all the time he spends on the job?

• Minimum wage for sales persons.... we have set the minimum amount paid to be more than minimum wage for scheduled work hours. If salespersons elects to work more hours than scheduled, and does not earn enough with commission to equal minimum wage for hours worked, do we need to pay more than minimum guarantee already provided?


Records Management

• How long to retain applications and employee information?

• Should you keep the background check, drug test, medical questionnaire in a separate folder from the regular employee file?

• Do you have to keep the I-9 completely separate from all the employee' s documents or can it be kept with the drug test, background check in a separate folder. According to INS booklet, you are required to keep I-9's on current employees for three years or one year for terminated employees, is this correct?

• If you have a company with 10 separate EIN numbers and a Corporate Office - do the legal requirements flow up to the corporate level or do they stay at the location level? In other words do HR files need to be kept at Corporate level or at location level, etc.

• How specific do we need to be when indicating why an employee is exempt from overtime on the I-95 - do we need to site the actual section Sections and sub-sections? (Client is located in NY)

• If an employee has been training under the Federal Re-Education Act is it safe to assume that he/she would not fall under the HIRE Act for a tax break to the employer?

• Should employees be able to see the contents of their personnel file?


Equal Opportunity Employment

• Are there any differences in equal opportunity rights for managers or other employees. For example do we have to treat exempt or non exempt employees differently as related to discrimination?

• What exactly is a protected class?

• What is the age for inclusion as an “older worker”?

• We are not a government contractor and not required to have an Affirmative Action Plan but we thought we might set one up as best practice guideline- do you think this is a good or bad idea?


Questions and Answers


QUESTIONS?

Contact Information


The recorded webinar and presentation slides will be emailed to

you today including your local representative’s contact information.

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when disaster strikes will you be prepared?

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