Top 10 Employment Law Issues Facing Car Dealers in 2013

Transcription

1 Top 10 Employment Law Issues Facing Car Dealers in 2013 With Charles Feuss, J.D. of Kilpatrick, Townsend & Stockton LLP Moderated by Mike Bowers, Executive Editor at DealersEdge Thursday, March 28, :30pm ET Charles Feuss, J.D. of Kilpatrick, Townsend & Stockton LLP Charlie Feuss is a partner in the firm of Felhaber, Larson, Fenlon and Vogt in Minneapolis. He specializes in representing management clients exclusively in the areas of labor and employment law. Charlie has represented clients in employment litigation in numerous federal and state courts around the country. He has practiced before numerous federal and state employment agencies and has also appeared before the Organization for Economic Cooperation and Development on international employment law issues. A significant portion of his practice has been spent representing both union and non-union employers before the National Labor Relations Board and National Mediation Board. He has handled numerous representation (election) cases and unfair labor practice cases before the NLRB in over 30 states and has negotiated many collective bargaining agreements and arbitrated numerous labor cases. Charlie is a co-founder of the Twin Cities Labor Roundtable. He is a frequent speaker to business and legal groups on the topics of labor relations and employment law. He regularly develops and presents management training programs across the U.S. Practice Areas: Employment LawLitigation and Labor Relations Education: J.D., Emory School of Law, 1980 B.A., Emory University, 1976

2 Top 10 Employment Law Issues Auto Dealers Face in 2013 Presented in Conjunction with What s New for 2013? EEOC Charges Up 20% (since 2006) NLRB expanding coverage of non-union employers Obama Care kicks in DOL out to raise funds through more audits and investigations New regs expand FMLA rights Plaintiffs lawyers keep chugging on Wage and Hour class action gravy train Employee privacy rights become hot topic Immigration Reform on horizon Are We having FUN yet? 4

3 Top 10 Employment Law Issues Auto Dealers Face in #1 Unlawful Pay Plans 6

4 #1 Unlawful Pay Plans Auto Dealers have many and varied pay plans Salesman, partsman and mechanic exemption is to overtime only not minimum wage Minimum wage must be calculated every week Commission plans only exempt in retail establishments Administrative and Executive exemptions require salary payment ($455/week) Overtime must be based on effective hourly rate, to include spiffs, bonus and other extra payments. 7 #2 Misclassification of Employees 8

5 #2 Misclassification of Employees Misclassification of employees as exempt can lead to massive overtime claims Exemption can be destroyed by improper deductions from salary Title does not determine eligibility for exemptions many managers do not meet test for any exemption Misclassification of employees as independent contractors leads to expensive DOL claims Expect increased audits of Independent Contractor status related to Obamacare 9 #3 FMLA Compliance 10

6 #3 FMLA Compliance DOL issues new regs expanding FMLA availability for military service member families and flight crews New guidance interpreting FMLA to allow leave to care for adult children with disability Courts have taken expansive view of intermittent leave under FMLA, allowing employees to take leave as needed Employers should adopt strict FMLA policy and administration: Count all qualifying leave as FMLA Make sure employee is eligible Require proper paperwork Do not wait until breaking point before deciding to get tough on FMLA 11 #4 Time Off Under ADA 12

7 #4 Time Off Under ADA EEOC has increased scrutiny on cases involving time-off for disability reasons Rigid return to work policies and no fault attendance policies have been found unlawful Exhaustion of FMLA leave is not an excuse Employers must engage in interactive process to determine if additional leave or time off is a reasonable accommodation under ADAAA 13 #5 Increased EEOC Activity 14

8 #5 Increased EEOC Activity EEOC charges up 20% since 2006 Retaliation and ADA charges up by 67% EEOC has announced strategic initiative to challenge unlawful hiring practices Dealers must ensure hiring process is color-blind, gender-blind, age-blind and sensitive to disability issues Managers need training in EEO basics to avoid making stupid mistakes! 15 #6 Employee Privacy 16

9 #6 Employee Privacy Courts recognizing claims of invasion of privacy by employers investigating employee activity Some states have passed laws restricting employer access to employee social media information Plaintiffs pursuing more claims under FCRA for violation of applicant and employee rights Some talk of making criminal and credit checks of applicants illegal Dealers have to be careful with casual use of employee credit information Employers should maintain computer use and social media policies to minimize risk of privacy claims 17 #7 Immigration Reform 18

10 #7 Immigration Reform Immigration Reform WILL be a big issue in 2013 USCIS issued new I-9 form for use no later than 5/7/13. Do not re-certify current employees. Some talk of making E-Verify mandatory but not yet Administration is taking steps to ease immigration with family unity waiver program and provisional unlawful presence waiver Employers will be caught in middle as rules change USCIS will put increasing burden on employers to monitor compliance with immigration law while not discriminating against immigrants in the workplace 19 #8 Social Media Activity 20

11 #8 Social Media Activity Social Media activity and usage raises numerous workplace legal issues Can employer discipline employee for off duty social media use? Does employer have right to review employee social media posts? Demand passwords? Social media has given rise to numerous harassment, defamation and discrimination claims Social media usage may be protected under NLRA Have a lawful social media policy to educate employees and protect employer 21 #9 Expanded Activity by NLRB 22

12 #9 Expanded Activity by NLRB Unionization continues to fall 6.2% nationwide Unions still active in auto industry in some parts of country but very little new organizing NLRB is trying to justify its existence (and budget) by expanding into areas of non-union employee rights Concept of protected concerted activity being used to find violations of NLRA: Sharing Confidential Information Criticism of Employer Social Media Use and Policies At-Will Statements Managers need training to able to recognize and deal with PCA 23 #10 Getting Ready for ACA (Obamacare) 24

13 #10 Getting Ready for ACA While plenty of uncertainty exists, most aspects of ACA kick in 1/1/14. Employers need to act now to prepare for it Pay or Play requirements based on number of fulltime employees, so employers need to know how many FTE s they have and how many they plan to have as of 1/1/14 Some employers will elect to pay $2000 penalty per employee (over 30) rather than provide insurance Others will reduce hours to avoid insurance obligation While many questions are yet to be answered, time is now to get ready for Obamacare! 25 QUESTIONS 26

14 ATLANTA AUGUSTA CHARLOTTE DENVER DUBAI LOS ANGELES NEW YORK RALEIGH SAN DIEGO SAN FRANCISCO SEATTLE SHANGHAI SILICON VALLEY STOCKHOLM TAIPEI TOKYO WALNUT CREEK WASHINGTON D.C. WINSTON-SALEM Charlie Feuss