how to bulletproof your employment practices

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How to Bulletproof Your Employment Practices

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– KPA CONFIDENTIAL –

PresenterPresenter

John P. Boggs, Esq.Fine, Boggs & Perkins LLP

(650) [email protected]

– KPA CONFIDENTIAL –

QuestionsQuestions

• If you have questions during the presentation, please submit them using the “Questions” feature

• Questions will be answered at the end of the webinar

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 StatisticsInteresting Statistics

WHEN WE ARE HIRING SOMEONE,

WHAT WE SEE ISN’T ALWAYS WHAT WE GET.

• 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 Me Slackers 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. Murphy Murphy’s Law – If Something Can Go Wrong, It Will. Murphy Was Born In A Dealership.Was Born In A Dealership.

Common Problems Dealers FaceCommon Problems Dealers Face

REMOVING THE BULLSEYE!

The only way to WIN THE BATTLE is to follow a standardized step-by-step process

Application InterviewConditional

Offer

Drugand/or Background

Screening

New Hire Packet

Company Policies & Training

FIND QUALITY EMPLOYEESELIMINATE THE “WALKING LAWSUIT”

Bullet-Proof Your Employment PracticesThrough Forced Function

Bullet-Proof Your Employment PracticesThrough Forced Function

APPLICATIONAPPLICATION

Application

The ApplicationThe 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

Employment ApplicationEmployment Application

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 EmploymentAt-Will Employment

Screening and TestingScreening 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.

INTERVIEWINTERVIEW

Interview

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!

InterviewInterview

Velvet Hammer InterviewVelvet Hammer Interview

• LISTEN!• STOP TALKING• ASK OPEN ENDED

QUESTIONS• DON’T ASK ILLEGAL

QUESTIONS

Questions to Ask:Work Ethic and Attitude

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?

•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

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:

InterviewInterview

Check ReferencesCheck References

• CALL FORMER EMPLOYERS• SPEAK WITH SUPERVISORS• CALL PERSONAL REFERENCES• BE A HYPOCRITE ON REFERENCES

CONDITIONAL OFFERCONDITIONAL OFFER

Conditional Offer

Is it UNLAWFUL to obtain a drug screen BEFORE extending an offer to hire?

False Hiring Promises Eliminated

Conditional OfferConditional Offer

DRUG AND BACKGROUND SCREENINGDRUG AND BACKGROUND SCREENING

Drugand/or Background

Screening

Background ScreeningBackground 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

Background ScreeningBackground 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

New Hire PacketNew Hire Packet

New Hire Packet

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 PacketNew Hire Packet

COMPANY POLICIES AND TRAININGCOMPANY 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 obtained when any significant change is made

Company Policies and TrainingCompany Policies and Training

PoliciesPosters

Training

The law requires that dealerships take reasonable steps to prevent harassment

Reasonable steps means:

Anti-Harassment TrainingAnti-Harassment Training

Mandatory TrainingMandatory Training

SEX HARASSMENT TRAINING

ANTI-HARASSMENT TRAINING

Legally Protected BasesLegally Protected Bases

• Race• Religion• Color • Sex• National Origin• Ancestry• Citizenship Status

• Uniform Service Member Status

• Marital Status• Pregnancy• Age • Medical Condition• Handicap/Disability

Mandatory TrainingMandatory 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

PERFORMANCE MANAGEMENT

ASK THE TEN DEADLY QUESTIONS?

Avoiding LiabilityAvoiding Liability

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 ChecklistLegal Liability Checklist

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?


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.)


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.


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.)


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


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


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?


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


10. Do you plan to terminate the employee?


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 DecisionsAvoid Discriminatory Decisions

Performance DeficienciesN.E.A.T.

Notice of Expected StandardExplain

1. Performance Deficiency2. What Must Be Done

Assistance to ImproveTIME TO IMPROVE

Discipline/TerminationDiscipline/Termination

Rule ViolationsF.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/TerminationDiscipline/Termination

INFORMATION SECURITY

Customer Information SecurityCustomer 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

THE PROCESS SOLUTION TO

RED FLAGS

ITPP Compliance ProcessesITPP 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

FREE ATTORNEY TIME!!!QUESTIONS?

QUESTIONS?

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[email protected]

866-356-1735

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how to bulletproof your employment practices

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