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When Disaster Strikes
Will You Be Prepared?
September 9, 2010
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.
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
• Administration and Recordkeeping
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• 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?
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• 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?
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• Can I fire someone when I have never given them a disciplinary
• 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
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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.
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• 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?
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• 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?
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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.
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• 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?
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• 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
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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
• 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?
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Questions and Answers
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The recorded webinar and presentation slides will be emailed to
you today including your local representative’s contact information.