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www.kpaonline.com
(866) 356-1735
How to Bulletproof Your Employment Practices
John P. Boggs, Esq.
Fine, Boggs & Perkins LLP
93% of all employers use screening for job applicants.
79% of all employers use background checks for job applicants.
56% ...
WHEN WE ARE HIRING
SOMEONE,
WHAT WE SEE ISN’T ALWAYS
WHAT WE GET.
• The Limited Fishpond
• The Great Pretender-Low Integrity Candidates
• Those Who Accept Substance Abuse
• The Worker Who ...
REMOVING THE BULLSEYE!
The only way to WIN THE BATTLE is to
follow a standardized step-by-step process
Application Interview
Conditional
Offer
Dr...
APPLICATION
Application
The Application
• Application with Legal
Protections
• Review The Application--
Look For The Key
Indicators of the Walking...

Employment Application
If hired, I agree as follows: My employment and compensation is terminable at-
will, is for no definite period, and my emp...
Screening and Testing
APPLICANT'S STATEMENT & AGREEMENT
• I understand that the Company reserves the right to require me t...
INTERVIEW
Interview
Studies show that interviewing a
candidate for a job position is only 14
percent effective in determining “job
fit.” On a ...
Velvet Hammer Interview
• LISTEN!
• STOP TALKING
• ASK OPEN ENDED
QUESTIONS
• DON’T ASK ILLEGAL
QUESTIONS
Questions to Ask:
Work Ethic and Attitude
• What skills are required to get along with and work
cooperatively with others?...
• What would your supervisor have to say about you?
Co-workers? Subordinates?
• How were problems resolved at your last jo...
Age or birth date
Marriage status or child care
Nationality or background
Disability
Club memberships
Pregnancy
Can you wo...
Check References
• CALL FORMER EMPLOYERS
• SPEAK WITH SUPERVISORS
• CALL PERSONAL REFERENCES
• BE A HYPOCRITE ON REFERENCES
CONDITIONAL OFFER
Conditional
Offer
Is it UNLAWFUL to obtain a
drug screen BEFORE
extending an offer to hire?
False Hiring Promises
Eliminated
Conditional Off...
DRUG AND BACKGROUND SCREENING
Drugand/or
Background
Screening
Background Screening
Background checks include
• Credit hits
• Character Checks
• Criminal background information
• DMV re...
Background Screening
Background checks require:
1. Initial written authorization
2. Proper legal disclosures and info
3. O...
New Hire Packet
New Hire
Packet
Federal Documents
I-9 Employment Eligibility Verification
W-4 Federal Withholding
State Documents
New Hire Reporting
EEO N...
COMPANY POLICIES AND TRAINING
Company
Policies &
Training
An employee must have
access to the employee
handbook to be held
accountable to the policies
New signatures should be
obta...
Policies
Posters
Training
The law requires that dealerships take
reasonable steps to prevent harassment
Reasonable steps m...
Mandatory Training
SEX HARASSMENT TRAINING
ANTI-HARASSMENT TRAINING
Legally Protected Bases
• Race
• Religion
• Color
• Sex
• National Origin
• Ancestry
• Citizenship Status
• Uniform Servic...
Mandatory Training
SEX HARASSMENT TRAINING
ANTI-HARASSMENT TRAINING
IRS 8300 CASH REPORTING TRAINING
GRAMM-LEACH-BLILEY (S...
PERFORMANCE
MANAGEMENT
ASK THE TEN DEADLY
QUESTIONS?
Avoiding Liability
1. Do you feel comfortable after your
investigation that you will be able to prove,
with evidence, that the employee viola...
2. Are there any prior commitments (written
agreements or promises) in employee's
personnel file regarding a specific term...
3. Are there any complaints or claims
(formal or informal) that the employee has
made against the company, any co-
worker,...
4. If the employee falls into a "protected
category" (e.g., minority, race, religion,
color, sex, sexual orientation, nati...
5. Has the employee taken any leaves of
absence within the last year? (Medical
leave, Family Care leave, Pregnancy
leave, ...
6. Have you disciplined others for this same
general rule violation or performance
deficiency?
Legal Liability Checklist
7. Has the level of discipline imposed been
substantially the same for the same
violation or performance deficiency for
ot...
8. Have you failed to discipline anyone for
the same general rule violation or
performance deficiency, even though
some ot...
9. Have you given different levels of
discipline to different employees for the
same general rule violation or
performance...
10. Do you plan to terminate the employee?
Legal Liability Checklist
Determine if you can distinguish leniency in
similar situations.
Document why current discipline scenario is
different tha...
Performance Deficiencies
N.E.A.T.
Notice of Expected Standard
Explain
1. Performance Deficiency
2. What Must Be Done
Assis...
Rule Violations
F.I.N.E.
Find Published Rule (Employee Handbook)
Identify Specifics of How Rule was Broken
Notice as to Wh...
INFORMATION
SECURITY
Customer Information Security
The dealership CIS Program must include five
elements:
• Dealership must designate an employ...
THE PROCESS SOLUTION
TO
RED FLAGS
ITPP Compliance Processes
The dealership ITPP Compliance Program must include the following:
• Dealership should have a wr...
HotlinkHR is made available to dealerships through KPA
and provides an easy to use step-by-step forced process
that fortif...
Contact Us
www.kpaonline.com
bross@kpaonline.com
866-356-1735
51
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How to Bulletproof Your Employment Practices

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How to Bulletproof Your Employment Practices 02-25-10

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Transcript of "How to Bulletproof Your Employment Practices"

  1. 1. www.kpaonline.com (866) 356-1735 How to Bulletproof Your Employment Practices John P. Boggs, Esq. Fine, Boggs & Perkins LLP
  2. 2. 93% of all employers use screening for job applicants. 79% of all employers use background checks for job applicants. 56% of employers use skills testing for job applicants. 54% of employers use behavioral interviewing for job applicants. Employers interview an average of 8 applicants for an open position. Interesting Statistics
  3. 3. WHEN WE ARE HIRING SOMEONE, WHAT WE SEE ISN’T ALWAYS WHAT WE GET.
  4. 4. • The Limited Fishpond • The Great Pretender-Low Integrity Candidates • Those Who Accept Substance Abuse • The Worker Who Won’t Be There • Slackers Who Won’t Accept Supervision—Just Leave Me Alone • The Futile and Hated Interview • The Walking Lawsuit-Employee from Hell • Legal Compliance Becomes Impossible • Operational Inefficiencies • My Managers Won’t Do It or Don’t Have Time to Do It. • Murphy’s Law – If Something Can Go Wrong, It Will. Murphy Was Born In A Dealership. Common Problems Dealers Face
  5. 5. REMOVING THE BULLSEYE!
  6. 6. The only way to WIN THE BATTLE is to follow a standardized step-by-step process Application Interview Conditional Offer Drugand/or Background Screening New Hire Packet Company Policies & Training FIND QUALITY EMPLOYEES ELIMINATE THE “WALKING LAWSUIT” Bullet-Proof Your Employment Practices Through Forced Function
  7. 7. APPLICATION Application
  8. 8. The Application • Application with Legal Protections • Review The Application-- Look For The Key Indicators of the Walking Lawsuit – Blanks – Scratch-Outs – Multiple Employers and/or Short-term Employment – Reasons for Leaving Employment – Gaps in Employment Web-Based Employment Application
  9. 9.  Employment Application
  10. 10. If hired, I agree as follows: My employment and compensation is terminable at- will, is for no definite period, and my employment and compensation may be terminated by the Company (employer) at any time and for any reason whatsoever, with or without good cause at the option of either the Company or myself. Consequently, all terms and conditions of my employment may be changed or withdrawn at Company’s unrestricted option at any time, with or without good cause. No implied, oral, or written agreements contrary to the express language of this agreement are valid unless they are in writing and signed by the President of the Company (or majority owner or owners if Company is not a corporation). No supervisor or representative of the Company, other than the President of the Company (or majority owner or owners if Company is not a corporation), has any authority to make any agreements contrary to the foregoing. This agreement is the entire agreement between the Company and the employee regarding the rights of the Company or employee to terminate employment with or without good cause, and this agreement takes the place of all prior and contemporaneous agreements, representations, and understandings of the employee and the Company. At-Will Employment
  11. 11. Screening and Testing APPLICANT'S STATEMENT & AGREEMENT • I understand that the Company reserves the right to require me to submit to a test for the presence of drugs in my system prior to employment and at any time during my employment, to the extent permitted by law. • I also understand that any offer of employment may be contingent upon the passing of a physical examination, performed by a doctor selected by the Company. • I also understand that I may be required to take other tests such as personality and honesty tests, prior to employment and during my employment. • I understand that (in connection with this application and at any time during my employment) the company may investigate my driving record. • I understand that (in connection with this application and at any time during my employment) the company may investigate my criminal record and that an investigative consumer report may be prepared whereby information is obtained through personal interviews with my neighbors, friends, personal references, and others with whom I am acquainted. This inquiry includes information as to my character, general reputation, personal characteristics and mode of living. • I understand that should I decline to sign this consent or decline to take any of the above tests, my application for employment may be rejected or my employment may be terminated.
  12. 12. INTERVIEW Interview
  13. 13. Studies show that interviewing a candidate for a job position is only 14 percent effective in determining “job fit.” On a nice day, it would be just as effective and more enjoyable to sit on a park bench and hire every seventh person who walks by! Interview
  14. 14. Velvet Hammer Interview • LISTEN! • STOP TALKING • ASK OPEN ENDED QUESTIONS • DON’T ASK ILLEGAL QUESTIONS
  15. 15. Questions to Ask: Work Ethic and Attitude • What skills are required to get along with and work cooperatively with others? • Describe the qualities of a good boss? Employee? • What do you believe is characteristic of bad management? Good management? • What does being motivated mean to you?
  16. 16. • What would your supervisor have to say about you? Co-workers? Subordinates? • How were problems resolved at your last job? • How many weeks did you work without interruption over the past 12 months? Remember: Open Ended Questions! Questions to Ask: Specific Inquiries about Past Employers
  17. 17. Age or birth date Marriage status or child care Nationality or background Disability Club memberships Pregnancy Can you work weekends? It is UNLAWFUL to ask for information pertaining to: Interview
  18. 18. Check References • CALL FORMER EMPLOYERS • SPEAK WITH SUPERVISORS • CALL PERSONAL REFERENCES • BE A HYPOCRITE ON REFERENCES
  19. 19. CONDITIONAL OFFER Conditional Offer
  20. 20. Is it UNLAWFUL to obtain a drug screen BEFORE extending an offer to hire? False Hiring Promises Eliminated Conditional Offer
  21. 21. DRUG AND BACKGROUND SCREENING Drugand/or Background Screening
  22. 22. Background Screening Background checks include • Credit hits • Character Checks • Criminal background information • DMV records, etc. • Worker’s Compensation Claims History • Civil Claims History • Sex Offender Registry
  23. 23. Background Screening Background checks require: 1. Initial written authorization 2. Proper legal disclosures and info 3. Opportunity to get a copy of report 4. Intent not to hire and copy of report and federal and state disclosures 5. Final rejection letter
  24. 24. New Hire Packet New Hire Packet
  25. 25. Federal Documents I-9 Employment Eligibility Verification W-4 Federal Withholding State Documents New Hire Reporting EEO Notices Unemployment Notices Workers’ Compensation Notices Pay Day Notice State and Federal laws require numerous documents to be completed at the time of hire including: New Hire Packet
  26. 26. COMPANY POLICIES AND TRAINING Company Policies & Training
  27. 27. An employee must have access to the employee handbook to be held accountable to the policies New signatures should be obtained when any significant change is made Company Policies and Training
  28. 28. Policies Posters Training The law requires that dealerships take reasonable steps to prevent harassment Reasonable steps means: Anti-Harassment Training
  29. 29. Mandatory Training SEX HARASSMENT TRAINING ANTI-HARASSMENT TRAINING
  30. 30. Legally Protected Bases • Race • Religion • Color • Sex • National Origin • Ancestry • Citizenship Status • Uniform Service Member Status • Marital Status • Pregnancy • Age • Medical Condition • Handicap/Disability
  31. 31. Mandatory Training SEX HARASSMENT TRAINING ANTI-HARASSMENT TRAINING IRS 8300 CASH REPORTING TRAINING GRAMM-LEACH-BLILEY (SAFEGUARDS RULE) RED FLAGS (IDENTITY THEFT PREVENTION) VARIOUS OPTIONAL TRAININGS
  32. 32. PERFORMANCE MANAGEMENT
  33. 33. ASK THE TEN DEADLY QUESTIONS? Avoiding Liability
  34. 34. 1. Do you feel comfortable after your investigation that you will be able to prove, with evidence, that the employee violated the rule, or the standard of performance was not met, and that you have treated other similar situations with the same level of discipline in similar circumstances? Legal Liability Checklist
  35. 35. 2. Are there any prior commitments (written agreements or promises) in employee's personnel file regarding a specific term of employment, continued employment or a requirement of just cause for termination of employment? Legal Liability Checklist
  36. 36. 3. Are there any complaints or claims (formal or informal) that the employee has made against the company, any co- worker, customer or vendor? (e.g., harassment, discrimination, retaliation, unpaid wages, workers compensation claims, safety issues, labor regulation violations, dishonesty, customer fraud or other claims that the company violated the law in any way, etc.) Legal Liability Checklist
  37. 37. 4. If the employee falls into a "protected category" (e.g., minority, race, religion, color, sex, sexual orientation, national origin, ancestry, citizenship status, uniform service member status, marital status, pregnancy, age/over 40, medical condition—cancer related or HIV/AIDS related, disability, or transgender status), does the employee's "protected category" represent a relatively small portion of your workforce or the employee's work group. Legal Liability Checklist
  38. 38. 5. Has the employee taken any leaves of absence within the last year? (Medical leave, Family Care leave, Pregnancy leave, Drug/Alcohol Rehabilitation leave, Workers Compensation leave, etc.) Legal Liability Checklist
  39. 39. 6. Have you disciplined others for this same general rule violation or performance deficiency? Legal Liability Checklist
  40. 40. 7. Has the level of discipline imposed been substantially the same for the same violation or performance deficiency for other employees? Legal Liability Checklist
  41. 41. 8. Have you failed to discipline anyone for the same general rule violation or performance deficiency, even though some other employees may have been disciplined for it? Legal Liability Checklist
  42. 42. 9. Have you given different levels of discipline to different employees for the same general rule violation or performance deficiency? Legal Liability Checklist
  43. 43. 10. Do you plan to terminate the employee? Legal Liability Checklist
  44. 44. Determine if you can distinguish leniency in similar situations. Document why current discipline scenario is different than other non-discipline scenarios. ―Start Fresh‖ and hold back on more severe discipline Avoid Discriminatory Decisions
  45. 45. Performance Deficiencies N.E.A.T. Notice of Expected Standard Explain 1. Performance Deficiency 2. What Must Be Done Assistance to Improve TIME TO IMPROVE Discipline/Termination
  46. 46. Rule Violations F.I.N.E. Find Published Rule (Employee Handbook) Identify Specifics of How Rule was Broken Notice as to What is Expected Explain Outcome if Continues or Decision Now Discipline/Termination
  47. 47. INFORMATION SECURITY
  48. 48. Customer Information Security The dealership CIS Program must include five elements: • Dealership must designate an employee as the CIS Program Coordinator • A Risk Assessment must be made to identify foreseeable threats • Safeguards must be developed to protect customer information • Service Provider Guidelines must be established and enforced • The CIS Program must be adjusted in response to the audits and changes in technology
  49. 49. THE PROCESS SOLUTION TO RED FLAGS
  50. 50. ITPP Compliance Processes The dealership ITPP Compliance Program must include the following: • Dealership should have a written ITPP Program Coordinator Job Description Signed By ITPP Program Coordinator • Dealership should have a written ITPP Compliance Officer Job Description Signed By ITPP Compliance Officer • A Written Risk Assessment should be implemented as a set process to identify and document the process of identifying covered accounts • Employee Handbook or Stand-Alone Policies and Agreements should be developed to educate new and existing employees and obtain a written acknowledgment of having received such policies • Service Provider Guidelines and Agreements should be provided with Written Acknowledgments • Program and Policies should be updated and acknowledged at least annually in response to the audits and changes in technology • Must train all personnel to protect against identity theft and prove that personnel understood and agreed to follow the rules • Must maintain an experience log of events relating to potential and actual identify theft
  51. 51. HotlinkHR is made available to dealerships through KPA and provides an easy to use step-by-step forced process that fortifies your legal protection! Compliance Through Forced Process
  52. 52. Contact Us www.kpaonline.com bross@kpaonline.com 866-356-1735 51
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