. . . Continued on Page 3

PO Box 68 • Dublin OH 43017 • Ph: 800-606-6332 • Fax: 614-889-0463 • www.kiawa.org • info@amgllcusa.com

KIAW NEWSLETTER NOVEMBER 2019

KIAW Kentucky-IndianaAutomotive Wholesalers

The Department of Labor announced the revised Overtime Rule, which will set the

minimum salary threshold for the Fair Labor Standard Act’s white-collar exemptions at $684 per week, or $35,568 per year. The rule, which will expand overtime pay obligations to an estimated 1.3 million additional workers, will take effect on January 1, 2020. What do you need to know about this breaking news?

Executive Summary: Proposed Rule In A Nutshell

annualized to $35,568 per year.

exemption, industry, or locality, subject to a few exceptions that already existed.

discretionary payments in limited ways.

additional total annual compensation requirement will be set at $107,432 per year.

of the relevant exemptions.

professional, and highly compensated employee exemptions.

exemptions (for example, outside sales) that do not specifically include a salary requirement even if the employee happens to earn a salary.

schedule of future adjustments to these figures.

will be assessed more frequently than it has been in the

past, but hopefully not so often that it essentially drives the market.A Brief History Of The Overtime Rule Saga

It seems an eternity ago when President Obama directed the U.S. Department of Labor (USDOL) to revise the regulations governing the outdated white-collar exemptions of the Fair Labor Standards Act (FLSA). The proposal eventually released by the USDOL would have radically altered the federal compensation rules. Most notably, the agency would have more than doubled the salary threshold and applied, essentially, a formula to update the amount every three years. This minimum threshold was set to become effective on December

January 1, 2020.

But concerned states and business groups sought to block the rule from taking effect, and, at the last minute, a federal court issued a preliminary injunction preventing the rule from being implemented on a nationwide basis. Since the Texas court put the final nail in Overtime Rule 1.0’s coffin by striking down the rule once and for all in August 2017, employers have been patiently awaiting a revised rule.

Under the current administration, USDOL leadership indicated that it would no longer advocate for the $913 per week proposal but would instead undertake further rulemaking to determine what the salary level should be. In what seemed like a painstakingly long process, the agency held public forums, issued a request for information, and sought comments on a proposed rule that, like Overtime Rule 1.0, focused solely on the pay

USDOL Releases Overtime Rule 2.0 For 2020

889-1309, members can call to get answers to employment law, labor and human resource questions. Members will get responsive, accurate answers to employment law questions about issues including Americans

your situation requires legal research and consultation, an attorney from Fisher & Phillips will advise you. There is no charge for the initial telephone conference. If specific legal advice to a specific situation is needed, Fisher & Phillips will explain your options and any potential fees. The information in this article is provided for informational purposes only. It does not constitute legal advice. You should consult with a qualified lawyer of your choice who is familiar with all of the facts of your situation before making a decision about any legal matter.

2

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Overtime Rule 2.0 . . . continued from Page 1

3

component but without completely overshadowing the duties tests. After all, the FLSA authorizes the agency to define and delimit the executive, administrative, and

finally, all of the work culminated in the release of Overtime Rule 2.0.

Will This Rule Survive?

After the drama surrounding the last-minute injunction blocking the 2016 proposal, it would be natural for employers to feel gun-shy about adjusting to these changes. After all, isn’t there a chance that another court will once again block these changes and put us in yet another state of limbo? While there is always a chance for litigation to unfold in such a way that it would impact the implementation of this rule, there are several reasons why you should be preparing as if this rule will go into effect as planned on January 1, 2020.

First, while there is no magic number for setting the salary threshold (that’s the whole point), there is something to be said for certainty. The new rule skirts some of the more problematic areas that existed with the first attempt at revisions. The $684 per week threshold will require the reclassification (or pay increases) of some employees, but a far less significant portion than would have seen increases had the $913-per-week proposal of three years ago was adopted.

Second, while the rule contains some of the same flaws as Overtime Rule 1.0, they generally are not the kinds of concerns that were previously raised in lawsuits.

the position that this particular threshold eclipses the duties tests. Likewise, while employee advocates might feel that the threshold is set at too low a level, meeting the pay component does not make someone exempt in and of itself, so this argument is more philosophic in nature and may not warrant the rule being blocked.

Finally, the USDOL must be well prepared at this point

received voluminous public feedback on an increase from $455 per week numerous times, including those shared in 2015, 2017, and 2018. So, while litigation seems inevitable, employers should not be idle in preparing for this rule to take effect.

Avoiding The Last-Minute Panic

As recounted above, the drama surrounding Overtime Rule 1.0 was a painfully long process for employers

as they waited to see what might happen. The best practice, though, is to assume Overtime Rule 2.0 is the real thing. That said, you should not run out tomorrow and make immediate changes to your compensation structure. Instead, you should use this time to start evaluating not just whether changes will be necessary, but how best to make those changes (timing, communications, etc.).

If you made changes in 2016 in anticipation of the $913 per week threshold, you are certainly ahead of the curve. If you did some of the work but decided to wait to implement once the preliminary injunction was put

in both cases, you must keep in mind that three years have passed and it is possible that an employee’s work has changed in the interim.

It is imperative to confirm your prior findings at least for any employee that might receive a salary increase to qualify for exempt status under Overtime Rule 2.0.

as exempt; in contrast, increasing the salary for an employee that does not meet the duties tests can only make matters worse.

Right now, you should be:

relying upon will still apply;

FLSA exemptions; and

who have been treated as exempt but who no longer will be.

The USDOL released extensive commentary explaining its rationales for the revised provisions. We are continuing to study the final regulations and accompanying discussion carefully and will offer further considered views, so you should ensure you are subscribed to Fisher Phillips’ alert system to gather the most up-to-date information, and follow our Wage

other guidance as you consider what steps to take.

This Legal Alert provides an overview of a specific federal rule. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

Source: Fisher Phillips

SSeeee wwhhaatt wwee ccaann ddoo ffoorr yyoouu ------ CCaallll 11--886666--667766--22887711!!

The Association has retained the legal services of Fisher & Phillips to provide members access to the expertise of Fisher & Phillips involving employment and labor law issues. Through the Association Legal

comprehensive legal service. If your situation requires legal research and consultation, an attorney from Fisher & Phillips will advise you. There is no charge for the initial telephone conference. If specific legal advice to a specific situation is needed, Fisher & Phillips will explain your options and any potential fees. The information in this article is provided for informational purposes only. It does not constitute legal advice. You should consult with a qualified lawyer of your choice who is familiar with all of the facts of your situation before making a decision about any legal matter.

Continued on Page 7 . . .

of the workplace. In most cases, there is no issue

an inspection and presents their credentials to the

conduct an inspection and has an opportunity to guide the walk-around.

But where there are multiple employers at a worksite—

credentials to the general contractor and conduct an inspection of the site, even though there may be multiple subcontractors working at the site. Does each employer at a worksite have the right to accompany the inspector during a walk-around inspection?

Employers Have A Right

To Be Present For OSHA Inspections

inspections at their worksites and to accompany

inspection. provides that

an opportunity to accompany the Secretary[’s] . . .

the Secretary of Labor has promulgated a regulation that further enshrines this right:

A representative of the employer and a representative authorized by his employees shall be given an

workplace for the purpose of aiding such inspection.

What Happens If This Right Is Violated?

after it received a complaint of an alleged safety hazard. The general contractor of the site consents to

“Walk This Way”:

What Are Employers’ Walk-Around Rights

During OSHA Inspections?your company, a subcontractor at the worksite. Your

inspection and resulting citation on the basis that you were not provided the opportunity to participate in the walk-around inspection?

and the court will not exclude subsequent citations that may be issued unless the employer can show actual prejudice.

A. J. McNulty & Co., Inc., 19

contractor and subcontractor on the first day of the

too busy to attend the opening conference. Within two

foreman and project manager and informed them that they or other company representatives could accompany him during the inspection. Subsequently,

in an area where the company was working. On the

representatives were not present, but he located a

fifteen minutes in each instance and reported each

required to alert each contractor prior to the inspection

inspecting its work area if he informs the employer of the accompaniment right at the outset of the inspection and makes an effort within a reasonable time to report

6

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TURN AROUND DEFENSIVE CO-WORKERS

Some people have a hard time admitting that more than one solution might work for a problem. So they react defensively when you ask them to explain or justify their ideas. Use these tactics:

� Take the focus off rejection and acceptance. Offer positive recognition to everyone for the high-quality, well-prepared input they provide-whether or not you act on the ideas.

� Stress teamwork. Let defensive co-workers know that while you value their input, you place equally high value-

. . . continued from Page 5

including which employees were exposed to the hazard

Moreover, a compliance officer’s failure to do one or both of these things to achieve substantial compliance with

employer makes a specific showing that the misbehavior prejudiced it in preparing or presenting its defense.

Additionally, federal courts have found substantial

�contractor on the walk-around but had informed the company that an inspection was about to begin and

pamphlet explaining the Act, and the contractor did not assert its right to be present. Chicago Bridge & Iron Co. v. OSHRC

� The employer’s superintendent was not notified of the inspection until part of it had been completed, although

the superintendent prior to the walk-around. Hartwell Excavating Co. v. Dunlop,

�representative to accompany him during the walk-

around. Frank Lill & Son, Inc. v. Sec’y of Labor, 362 F.3d 840

Additionally, employers must specifically identify how they

attend the walk-around. Actual prejudice can be shown where

on the walk-around. Accu-Namics, Inc. v. Occupational Safety & Health Review Comm’n,law suggests that a generalized claim of prejudice, without specifically identifying what the prejudice is and how it arose, is an insufficient basis to have a citation vacated based upon the failure to provide the walk-around right.

Summary And Best Practices

case law suggests that it does not need to specifically say as much to employers: there is no Miranda requirement that unless certain words be read, anything that happens

citations that are subsequently issued be vacated under any exclusionary rule unless they can show specific prejudice related to the failure to provide them with their walk-around rights.

Therefore, best practices for protecting your walk-around rights include:

�at a place where your employees work, be proactive and assert your rights to be present for the walk-around even

right to be present for the inspection.

�ensure that there is a process in place for alerting the other employers who could be affected by the inspection

�around rights, think about what specific prejudice you were caused—such as providing additional information

showing of actual prejudice to have any citation vacated. Source: FisherPhillips

comments; it’s important that I hear from Sue and Jon

� Discuss alternatives in hypothetical terms. Don’t challenge their ideas directly; when they perceive that their way is the only way, gently nudge them to consider other perspectives.

Examples:circumstances Jon and Sue’s idea might work? What would

-Adapted from The Bad Attitude Survival Guide

8

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9

Every Tuesday, KIAW provides members with industry news and information that is important to the automotive aftermarket industry. Here are just a few of the facts you have received in the last month. Check your email every Tuesday for the latest.

Join the campaign!

awareness campaign. Bill explains why it is important for us all to join the movement and demand access to and control of your vehicle data. Become

give vehicle owners access to and control of the data generated from their own vehicle. Your support is needed. Auto Care Association

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e vehehicle owners access tto andtrol off tthehe data gegenenerated fromr own vehicle. Your support is ded. Auto Care Association

FMCSA opens registration for

Drug and Alcohol Clearinghouse

Administration has opened

Driver’s License Drug and Alcohol

at preventing drivers from job-hopping to avoid the impact of failed drug tests. On Jan. 6, 2020, use of the clearinghouse will become mandatory to report and query information about driver drug and alcohol program violations by

employers will have to conduct both electronic queries within the clearinghouse and manual inquiries with previous employers to cover

holder’s history. But as of Jan. 6, 2023, employers will only have to query the clearinghouse and no longer make manual inquiries. -- Heavy Duty Trucking

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employers will have to conductboth electronic queries within the clearinghouse and manual inquirieswith previous employers to cover

holder’s history. But as of Jan. 6, 2023,employers will only have to querythe clearinghouse and no longermake manual inquiries. -- Heavy Duty Trucking

Weekly Bytes In ReviewIndustry News and Information

Time to renew your health

benefits for 2020?

If you are checking out options for your 2020 group health insurance renewal, now is the time to begin . . . and we strongly encourage you to check what is available through your Association!

Join

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beenefitfits foorr 202020??

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Employer rights in sexual

harassment termination

If the need ever arises for a termination due to sexual

several considerations an employer should consider -- and address in advance with a company-wide policy review, and/or harassment/sensitivity training -- to protect your employees and your rights as an employer.

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severaraal l consididerereratatioionnsns an emmppployer should cccono sider -- and aaddddddress inadvance wiithhth aa a c c comompapapanynyny-wide policyreview, and/or harassment/sensitivitytraining -- to protect your employeesand your rights as an employer.

PRO Act threatens business

community -

Grassroots action needed

There are currently 200 Democratic

Representatives and 40 Democratic Senators sponsoring the PRO Act. That means unions only need 18 more votes to pass this bill through the

the Republican Senate is unlikely to pass the bill, Labor is setting up the bill for quick passage after the 2020

Act. All of the top 2020 Democratic Presidential nominees have already said they support the bill, meaning the threats this bill poses could become a reality in the not-too-distant future.

has created a new grassroots toolbox portal to help companies like our members voice opposition to the PRO Act. -- CDW

9

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IRS warning:

Beware property tax lien scams

This fake property liens scam threatens taxpayers with a tax bill from a fictional government agency. A letter threatening an IRS lien or levy is sent to the taxpayer with a lien or levy based on bogus overdue taxes owed to a

reference the IRS to confuse potential victims into thinking the letter is from a real agency.

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New Bluetooth vulnerability:

Hackers could spy on you

Millions of us use Bluetooth wireless communications every day—to make phone calls when driving, with our fitness trackers, streaming at work or play. Innocent enough, seemingly. But no technology comes without a warning: a recently discovered Bluetooth vulnerability allows hackers to spy on your conversations or take control of your smart phone. The vulnerability deals with the encryption between two devices. It even has a

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Sale on forklift training materials

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e on forklift training materialsSale

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Advisory CouncilKevin Roppel

Roppel Industries • Louisville, KYPhone: 502-581-1004

Staff Kim Rominger Bill Garling Dennis Alford Executive Chief Operating Chief Marketing Director Officer Officer

David Kahler Jenny Archibald Associate Director Administrative Asst.

PO Box 68 • 6124 Avery RoadDublin, Ohio 43017

Phone: 614-889-1309 Fax: 614-889-0463

MISSION STATEMENT: The mission of KIAW is to advance the interests of the automotive aftermarket industry by providing benefits and services that improve business prosperity and efficiency..

would appear that more and more dealer-principals are retiring in the next 5 years. This figure aligns with data that suggests 75% of people holding this job title are ages 51 and over. If you fall into either or both of these groups, you’ll need to begin planning your succession as soon as possible.

Preparing Your Finances

It should come as no surprise to you that the earlier you begin planning for retirement the better. According to MarketWatch, more than 40% of Americans that plan to retire are at risk of having $10,000 or less in savings for their twilight years. There are a variety of contributing factors, such as slow income growth, growing medical expenses, and using retirement funds as a stop gap for emergencies without concrete plans to replenish those accounts. Being able to find and anticipate the weaknesses in your current financial strategy will help you choose the right successor.

Outline Options for Successors

You’ll also want to consider the following scenarios:

* If you were forced to retire early, who would you choose to be your successor?

*If everything goes according to plan, who would you like to take over your role if you retire on time? Is this the same person from the previous question?

* Would your replacement buy you out? Do they realistically

HOW TO PLAN FOR SUCCESSION

future?

* Does your successor have the necessary skills and

training? What additional education will they need to

run your business as well or better than you did? How

long will it take them to acquire that training? Are you

willing to financially help them obtain these skills?

These questions serve as a good jumping off point for critically analyzing your financial future against your succession dreams to bring those goals into full alignment.

Determine How to Transition Power

One of the biggest challenges facing successors is the daunting task of learning the history and established procedures that make up the bulk of your company’s success. The right business management solution can help

dealer principals looking to smoothly hand over the reins in retirement so that the business will continue to thrive and grow. Data accrued over years paints a picture of where your business has been and where it is headed more clearly than any historical anecdote or specialized training could ever provide. Advanced Reporting & Analytics tools make it possible to spot trends and find new avenues for growth. Decision making can be based on facts, not guesswork, continuing your legacy beyond your reign.

EPA’S PLAN FOR ETHANOL EXPANDS MARKET

The Trump administration has advanced a plan meant to expand the U.S. market for corn-based ethanol and place trading restrictions on credits that refiners use to prove they are using biofuel.

fulfilling President Trump’s promise to unleash sales of gasoline containing 15 percent ethanol. Air pollution requirements currently

lift those restrictions so it could be sold year-round.

At the same time, the administration is seeking to mollify some independent oil refiners that complain about volatile prices and possible hoarding of the credits required to prove they have satisfied

weigh in on possible trading restrictions on those credits, known

integrated oil companies and truck stops that changes in the thinly

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