How to Bulletproof Your Employment Practices 09.02.10

1. www.kpaonline.com
(866) 356-1735
How to Bulletproof Your Employment Practices
We will being at 10am Mountain Time

2. – KPA CONFIDENTIAL –
Presenter
John P. Boggs, Esq.
Fine, Boggs & Perkins LLP
(650) 712-8908
jboggs@employerlawyers.com

3. – 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

4. 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

5. WHEN WE ARE HIRING
SOMEONE,
WHAT WE SEE ISN’T ALWAYS
WHAT WE GET.

6. • The Limited FishpondThe Limited Fishpond
• The Great Pretender-Low Integrity CandidatesThe Great Pretender-Low Integrity Candidates
• Those Who Accept Substance AbuseThose Who Accept Substance Abuse
• The Worker Who Won’t Be ThereThe Worker Who Won’t Be There
• Slackers Who Won’t Accept Supervision—Just Leave MeSlackers Who Won’t Accept Supervision—Just Leave Me
AloneAlone
• The Futile and Hated InterviewThe Futile and Hated Interview
• The Walking Lawsuit-Employee from HellThe Walking Lawsuit-Employee from Hell
• Legal Compliance Becomes ImpossibleLegal Compliance Becomes Impossible
• Operational InefficienciesOperational Inefficiencies
• My Managers Won’t Do It or Don’t Have Time to Do It.My Managers Won’t Do It or Don’t Have Time to Do It.
• Murphy’s Law – If Something Can Go Wrong, It Will. MurphyMurphy’s Law – If Something Can Go Wrong, It Will. Murphy
Was Born In A Dealership.Was Born In A Dealership.
Common Problems Dealers Face

7. REMOVING THE BULLSEYE!

8. 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

9. APPLICATION
New Hire
Packet
Company
Policies &
Training
Conditional
Offer
Drugand/or
Background
Screening
Application Interview

10. 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

11. 
Employment Application

12. 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

13. 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.

14. INTERVIEW
New Hire
Packet
Company
Policies &
Training
Conditional
Offer
Drugand/or
Background
Screening
Application Interview

15. 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

16. Velvet Hammer Interview
• LISTEN!
• STOP TALKING
• ASK OPEN ENDED
QUESTIONS
• DON’T ASK ILLEGAL
QUESTIONS

17. 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?

18. •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

19. 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

20. Check References
• CALL FORMER EMPLOYERS
• SPEAK WITH SUPERVISORS
• CALL PERSONAL REFERENCES
• BE A HYPOCRITE ON REFERENCES

21. CONDITIONAL OFFER
New Hire
Packet
Company
Policies &
Training
Conditional
Offer
Drugand/or
Background
Screening
Application Interview

22. Is it UNLAWFUL to obtain a
drug screen BEFORE
extending an offer to hire?
False Hiring Promises
Eliminated
Conditional Offer

23. DRUG AND BACKGROUND SCREENING
New Hire
Packet
Company
Policies &
Training
Conditional
Offer
Drugand/or
Background
Screening
Application Interview

24. 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

25. 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

26. New Hire Packet
New Hire
Packet
Company
Policies &
Training
Conditional
Offer
Drugand/or
Background
Screening
Application Interview

27. 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

28. COMPANY POLICIES AND TRAINING
New Hire
Packet
Company
Policies &
Training
Conditional
Offer
Drugand/or
Background
Screening
Application Interview

29. 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

30. Policies
Posters
Training
The law requires that dealerships take
reasonable steps to prevent harassment
Reasonable steps means:
Anti-Harassment Training

31. Mandatory Training
SEX HARASSMENT TRAINING
ANTI-HARASSMENT TRAINING

32. Legally Protected Bases
• Race
• Religion
• Color
• Sex
• National Origin
• Ancestry
• Citizenship Status
• Uniform Service
Member Status
• Marital Status
• Pregnancy
• Age
• Medical Condition
• Handicap/Disability

33. 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

34. PERFORMANCE
MANAGEMENT

35. ASK THE TEN DEADLY
QUESTIONS?
Avoiding Liability

36. 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

37. 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

38. 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

39. 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

40. 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

41. 6. Have you disciplined others for this same
general rule violation or performance
deficiency?
Legal Liability Checklist

42. 7. Has the level of discipline imposed been
substantially the same for the same
violation or performance deficiency for
other employees?
Legal Liability Checklist

43. 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

44. 9. Have you given different levels of
discipline to different employees for the
same general rule violation or
performance deficiency?
Legal Liability Checklist

45. 10. Do you plan to terminate the employee?
Legal Liability Checklist

46. 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

47. 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

48. 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

49. INFORMATION
SECURITY

50. 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

51. THE PROCESS SOLUTION
TO
RED FLAGS

52. 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

53. FREE ATTORNEY TIME!!!
QUESTIONS?
QUESTIONS?

54. Contact Us
www.kpaonline.com
bross@kpaonline.com
866-356-1735
5454
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