Employment Practices: Q & A – Answer Sheet

Answer 1: False. The purpose of the NLRB is not just to regulate the relationship between employers and unions. The NLRB has been increasingly active in taking action against non-union employers, it says, to protect the ability of employees to act together to try to improve their pay and working conditions, with or without a union. The NLRB regularly files unfair labor practices lawsuits 83949097against non-unionized employers which it views as inhibiting employee interactions in violation of the NLRA.

Answer 2: False. When the policy is written this broadly, it can be construed to prevent employees from discussing work conditions they feel are unfavorable. While this can affect the reputation of the dealership, the National Labor Relations Board views such broad prohibitions as improperly inhibiting worker communications. A policy must be carefully tailored to avoid this problem.

Answer 3: True. A recent NLRB decision stated that requiring employees to identify themselves when posting comments on social media about the dealer, the dealer’s business, or a policy issue is overly broad. Employees could reasonably construe such requirement to cover comments about their terms and conditions of employment and a self-identification requirement reasonably would interfere with what NLRB views as protected activity in various social media outlets.

Answer 4: False. A business may prohibit cursing and similar offensive language. However, use of the term “inappropriate”, as broadly construed by the NLRB, could be viewed as a prohibition on discussion of employment practices or working conditions. Therefore, any prohibition of offensive language should be specific about what is prohibited to ensure it does not infringe on employees’ rights to talk about working conditions.

Answer 5: True. Drivers who deliver parts are probably not going to be considered as partsmen by the Department of Labor. As an example of how some local DOL offices are strictly construing the auto dealer exemptions, they have adopted an enforcement policy that parts counter people who work strictly on a retail counter are not considered “partsmen”. NADA disputes the validity of this position, but the NLRB offices taking this view read the law as exempting partsmen from premium overtime only for activities supporting repair operations in the service department.

Answer 6: False. Remember, an employer can be responsible for retaliation against an employee even where the employee’s charge of harassment or unlawful activity is groundless. Recently, the most prevalent complaints filed with the U. S. Equal Employment Opportunity Commission have been for retaliation. A decision to take job action against an employee who files a complaint a manager feels is groundless can be retaliation.

A company must be very careful with an employee who files a complaint alleging discrimination or harassment. It is easy to stumble into a retaliation claim by taking some sort of negative job action regarding that employee when the employer finds it groundless.

Even if you believe that the employee trumped up a charge against a supervisor to create protection against termination for poor performance, do not rush into taking negative job action against the employee. If the complaining employee’s performance is subpar, after you have explained the company’s reason for not taking action regarding the complaint, you may carefully watch the performance of the employee as you would any other employee. Where the employee’s performance continues to be subpar, counsel with the employee. Give the employee the opportunity to cure shortcomings. The EEOC may view a precipitous termination of an employee after a complaint to be retaliation.

Answer 7: True. Employees in a car dealership not entitled to premium overtime, such as salespeople, must still be paid minimum wage for every hour worked. The best way to determine the number of hours worked by employees is to have them punch in and out on a time clock. Carefully supervising that each employee is punching his or her own time is a perfectly acceptable way for the company to expect its employees to operate.

It is important, especially in tough times, to be sure all employees earn minimum wage for hours worked. Even for commissioned employees, there should be a regular determination that the employee earned at least minimum wage for every hour worked during the pay period. How do you know this without a time clock? Time sheets are notoriously inaccurate. Eliminating the requirement for recording time and relying solely on schedules is worse. The time clock is the best method for knowing the hours worked.

Answer 8: False. Stop doing pay plans on napkins. A pay plan written in haste that just provides how the employee will be paid with a minimum guarantee is likely to be misconstrued by a court as an employment contract for a specific duration. Prepare a professional pay plan.

What are the elements of a professional pay plan? It must be in writing and it must be signed by the employee. Carefully describe the basis on which the employee will be paid. If it is a sales pay plan, be sure the basis for pay is commissionable gross determined in the sole discretion of dealership management. Reserve the right for the dealership to change the pay plan and to correct mistakes. Reserve the right to recoup overpayments from future earnings. Include a disclaimer of contract: “This pay plan only describes the method by which employee will be paid. It does not alter employee’s status as an at will employee. It is not a contract. It does not ensure employment for any specific duration.”

Answer 9: False. For more than a decade, the FTC Information Safeguards Rule has required you to protect the non-public personal information of your customers. Those who do business with you are YOUR customers. They are not the customers of the salesperson. Giving salespeople dealership records with detailed customer information to keep so a salesperson may follow up is not appropriate.

The dealership should control follow up. The dealership should give access to information only on those it wishes the employee to contact, and that information should be returned to the dealership or the salesperson’s access to the information should be permitted only on a limited basis.

Your customer information is a valuable asset. It is a major component of the goodwill value of the business that a buyer may someday be willing to pay you. You should protect that information.If an employee leaves with customer information, what protects your dealership from solicitation of its customers on behalf of a new dealership where the employee gets a job? What prevents the employee from using the information to contact your customers to tell them they have been mistreated by you or to make other false allegations? Protecting your customers’ information is not just the law; it makes sound business sense.

Answer 10: False. It may not be appropriate. The National Labor Relations Board recently ruled that a simple prohibition of pins is overbroad. Safety determinations about pins may be made case by case. For a lawful prohibition on wearing pins, it must be for “special circumstances,” and it must be narrowly tailored to address the safety concerns of the employer.