attention: scada workers compensation fund participants

10/24/2014
Executive Update 9.26.14
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Executive Update, 9.26.14
September 26, 2014
ATTENTION: SCADA WORKERS COMPENSATION
FUND PARTICIPANTS
Reporting NEW Workers Compensation Claims
Please be aware that since September 1, 2014 all of your NEW Workers Compensation claims should be
reported to Companion Third Party Administrators, our new TPA. If you have a new Workers Compensation
claim, you should:
E-mail claim to:
Or, FAX claim to:
[email protected]
(877) 379-7389
If you have questions, our Claim Supervisor will be:
Dawn Allison, Claim Supervisor
Companion Third Party Administrators, LLC
P.O. Box 100159
Columbia, SC 29202-3159
Direct Phone: (803) 264-2552
Toll Free:
(800) 845-2724 Ext. 42552
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On October 1, Companion TPA will take over all open claims as well. The transition process is underway
currently. Should you have any questions regarding this transition, please contact Sims Floyd at (803) 2520205.
Lannes C. Prothro, III
Insurance Trustee Chairman
SPARTANBURG SCDMV DEALER CLASSES
The SCDMV is hosting a series of training classes in the coming months available to Dealers and their staff.
The class scheduled for October 7 in Spartanburg currently has low registrations. They need at least 10
people signed up in order to host the class. In order to register, individuals should contact SCDMV Training
and Change Management at 803.896.4870 or email [email protected]
For further information about the classes and schedule, click HERE.
STATE PAC CONTRIBUTIONS
A special note of appreciation to the Dealerships that have supported our state PAC this year. If you
do not see your Dealership listed, please consider contributing to this the most effective and only
program to protect South Carolina Dealerships. Click the button below to print the pledge sheet.
Addy's Harbor Dodge
Jones Ford, Inc.
Bell & Bell Bui-GMC
JTs Chrysler Jeep Dodge
Bennett Motor Co., Inc.
Kia Country
Bob Richards Nissan
King Cad-Bui-GMC Truck, Inc.
Bob Richards Toyota
Lake Keowee Chrysler-Dodge, LLC
Bradshaw Automotive Group
Lexus of Charleston
Burns Chev-Cadillac, Inc.
Longstreet Che-Bui-Cad-GMC
Burns Chevrolet, Inc.
Love Buick GMC
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Burns Ford, Inc.
Love Chevrolet Company
Christopher Trucks, Inc.
Lugoff Toyota
Cooper Motor Company
McDaniels Acura of Charleston/Audi
Crews Chevrolet
McKinney Dod-Chr-Jee-Maz
D & D Motors, Inc.
McLaughlin Motors, Inc.
Dick Brooks Honda
Meggs Ford
Dick Dyer Toyota
Mike Reichenbach Ford Lincoln
Dodgeland of Columbia
Morris Nissan
Dunlap-Johnson Chevrolet Co., Inc.
Myrtle Beach Chr-Jeep, Inc.
East Coast Honda
Myrtle Beach Kia
East Coast Volkswagen
Palmetto Chevrolet Co., Inc.
Edwards Auto Sales, Inc.
Palmetto Ford, Inc.
Fairway Ford, Inc.
Pendarvis Chevrolet Co., Inc.
Firmin Ford, Inc.
Piedmont Chrysler-Jeep-Dodge
Florence Toyota
Piedmont Honda
Fred Caldwell Chevrolet
Piedmont Nissan
Gaffney Buick-GMC, Inc.
Porsche of Hilton Head
Galeana Chrysler-Jeep-Kia
Prothro Chevrolet Co., Inc.
George Ballentine For-Lin
Quality Chrysler of Greenwood
George Coleman Ford, Inc.
Raceway Ford Chevrolet Hartsville
Gibbes Ford
Ralph Hayes Toyota, Inc.
Goodwin Honda-Mitsubishi-VW
Rick Hendrick Imports
H & H Chevrolet, Inc.
Rizer Chevrolet-Buick-GMC, Inc.
Hadwin-White Bui-GMC-Sub
Satcher Ford
Hendrick Hyundai
Service Motor Company, Inc.
Herlong Che-Bui, Inc.
Sitton Buick-GMC
Herndon Chevrolet, Inc.
Sparks Toyota, Inc.
Hilton Head Chr-Jee-Dod
Stokes Honda Cars of Beaufort, Inc.
Hilton Head Hyundai
Stokes Honda North
Hilton Head Mazda
Stokes Kia
Hilton Head Mitsubishi
Stokes Mazda
Hilton Head Nissan
Stokes Volkswagen
Hilton Head VW/Audi Hilton Head
Stokes-Brown Toyota of Hilton Head
Honda of Columbia
Stokes-Brown Toyota-Scion
Hoover Automotive, LLC
Stokes-Trainor Che-Bui-GMC-Cad
Hughes Motors, Inc.
Subaru of Charleston
Infiniti of Hilton Head
Subaru of Hilton Head, LLC
Jaguar Land Rover Hilton Head
Sumter Chrysler-Jeep-Dodge-RAM
Jim Hudson Bui-GMC-Cadillac, Inc.
Toyota of Easley, Inc.
Jim Hudson Lexus
Vic Bailey Honda
Jim Satcher, Inc.
Wakefield Automotive
Jones Buick-GMC, Inc.
Wilson Chevrolet, Inc.
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Jones Chevrolet-Cadillac
Wilson Chrysler-Dodge-Jeep, Inc.
WAGE AND HOUR COMPLAINTS AND ENFORCEMENT ON
THE RISE
Update provided by Sloan, Montgomery, Gregory & Hall, Inc.
Continuing the current Administration’s increased emphasis on minimum wage and overtime issues, the U.S.
Department of Labor - Wage and Hour Division reports that it recovered $280 million in back wages owed to
308,000 employees in its fiscal year ending 2012. By comparison, the Agency recovered $105 million in back
wages owed to 228,000 employees in FY 2008, the last full year of the previous Administration.
On top of this increased enforcement by Wage and Hour, many employees are electing to bypass the
Department of Labor and go directly to a plaintiff attorney to file a private lawsuit to recover back wages. A
total of 8,076 private Fair Labor Standards Act lawsuits were filed during the 12-month period April 2013 to
March 2014. This represents a 33% increase over the same period in 2010, where 6,081 claims were filed in
federal courts. This option can often be more appealing to employees in that civil lawsuits almost always seek
back wages for three years, plus an equal amount in liquidated damages, plus attorney fees. In some
instances, attorney fees can be greater than the back wages collected for the employee(s).
The U.S Department of Labor has coined the term “Wage Theft” for intentional or unintentional violations of
the minimum wage, overtime pay, and recordkeeping requirements of the Fair Labor Standards Act. The
FLSA, passed by Congress in 1938, is one of the oldest employment laws, but it is one that is frequently
violated by employers who do not understand its complexity. Some of the more common violations include:
1. Failure to pay employees for all hours worked. This practice includes requiring or allowing
employees to “work off the clock,” altering time records so as to pay employees for fewer hours than
actually worked, or ignoring time recorded prior to or after the scheduled workday. Most automated
timekeeping systems enable employers to edit or change employees’ time entries, set parameters to
exclude early or late punching for calculating the hours worked, or make automatic deductions for
meal periods. When such after-the-fact revisions are necessary, employers should document the
reason for any revisions to an employee’s original time entries, and require the employee’s approval
and signature for the correction(s). Employees should also verify that they did in fact take a meal
period for which they were docked.
2. Not paying employees correctly for time spent in training, travel time, or attending meetings.
3. Docking employees for meal periods when the employee takes less than 30 minutes or when the
employee is not completely relieved from duty during the meal period. An employee who eats
lunch at his or her work station and is interrupted to answer the telephone, respond to an e-mail, or
provide assistance to someone is not “completely relieved from duty”; neither is a field employee who
grabs lunch at a drive-thru while traveling between two stops.
4. Making improper deductions from employees’ wages for company-required items such as uniforms,
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tools, or other items necessary to do the job or for cash or inventory losses or damage to company
property. While such deductions are permissible to a certain degree, there are rules and limits that
apply.
5. Failure to pay overtime premium (time and one-half the employee’s rate of pay) for hours worked
over 40 in a workweek, except for those positions that may be exempt. This includes refusing to pay
employees for overtime worked even if you have a policy that prohibits unauthorized overtime.
6. Failure to include bonuses, commissions, shift premium, or other forms of compensation when
computing an employee’s overtime rate. Bonuses, commissions, or other incentives increase the
employee’s regular hourly rate of pay and any overtime hours must be paid based on the higher rate
of pay, not the base hourly rate.
7. Misclassifying employees as exempt from the minimum wage or overtime pay requirements. A
position is not exempt from overtime pay simply because the employee is paid a salary or by
commission.
8. Making improper deductions from the guaranteed salaries of exempt employees for absences, or for
losses or damage to company property or funds.
9. Failure to maintain accurate records of time worked or wages paid in order to be in a position to prove
compliance with wage and hour laws. There is no requirement that printed time records be kept;
however, companies should be able to produce original time records from an electronic archive format
for the preceding three years.
10. Misclassifying employees as independent or sub-contractors so as to avoid paying overtime,
withholding taxes, or providing fringe benefits. Again, a person is not an independent contractor
simply because the employer and the individual agree to the arrangement even if the individual signs
an independent contractor agreement.
Even small amounts of under- or non-payment of wages due in a single workweek can add up to a sizeable
liability for overtime, particularly if multiple employees are involved. Employers can be liable for back wages
for up to two (2) years for non-willful violations and three (3) years for willful violations. The employee can
also recover liquidated damages equal to the amount of back wages owed and reasonable attorney fees. The
Department of Labor can also assess civil penalties and recommend criminal prosecution for willful and repeat
violations. Individual supervisors and managers who make decisions regarding employees’ wages, wage
payment, or deductions can also be held personally liable for certain violations.
The bottom line is that it is not worth the risk to intentionally or unintentionally violate federal or state wage
and hour laws. It is the employer’s responsibility to insure that its pay practices conform to the applicable
laws and regulations. Periodic compliance audits by someone knowledgeable about state and federal wage
and hour laws can identify potential problems and prevent costly mistakes.
This wage and hour update is SCADA endorsed. If you have questions regarding the topic covered in this
Information Release, you may contact our firm, Sloan, Montgomery, Gregory & Hall, Inc. at (803) 782-9246.
This bulletin is provided as a service to clients and is only to give information of a general nature. It is
not intended as, nor should it be considered, legal advice or opinion.
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OSHA REPEALS DEALER RECORDKEEPING EXEMPTIONS
Update provided by NADA Regulatory Affairs
The Occupational Safety and Health Administration (OSHA) today repealed a number of industry exemptions
from its mandate that employers with 11 or more employees keep a workplace injury and illness log, including
one for car dealers that dates back to the 1980s. Effective January 1, 2015, car dealers must use OSHA Form
300 to record workplace injuries and illnesses. By February 1, 2016, they must also post an OSHA Form
300A summary of the workplace injury and illnesses that occurred in 2015. Dealers can access an OSHA fact
sheet on today’s rule and an online tool to train employees on how to fill out the newly required forms.
As a concession, the final rule contains a commitment by OSHA to review the efficacy of today’s changes in
two years, the direct result of NADA’s unwavering opposition to the exemption repeal, first proposed by
OSHA in 2011. Regulatory Affairs will soon issue an all-member FAQ on the topic. Questions can be
directed to NADA Regulatory Affairs at 703.821.7040 or [email protected].
CLIENT ADVISORY ON FTC WARNING LETTERS
Update provided by Joel Winston* with Hudson Cook, LLP
Recently, the Federal Trade Commission sent warning letters to numerous companies focused on how those
companies made qualifying disclosures in their advertising. The letters were designed to send a clear message
to businesses that market their products and services in any medium – in other words, all businesses: “Clear
and conspicuous” disclosures really need to be clear and conspicuous.
The FTC, which celebrates its 100th anniversary this year, has broad authority to bring enforcement actions
against businesses that engage in “unfair or deceptive acts of practices,” including deceptive advertising.
Under the law, an advertisement may be deceptive because it makes claims that are false or misleading, or
because it either omits entirely or doesn't adequately disclose information necessary to prevent the
advertisement from creating a false impression. Generally speaking, any necessary disclosures must be “clear
and conspicuous.” The agency’s jurisdiction extends to all commercial entities, with certain exceptions, such
as depository institutions, insurance companies, common carriers, and non-profit organizations. FTC actions
can result in formal orders prohibiting the practices that were challenged, requiring the disclosure of
information, and imposing monetary judgments in the form of consumer redress and/or civil penalties.
Over the past few months, the FTC reviewed over one thousand magazine and television advertisements
disseminated by companies in a wide variety of industries and followed up with warning letters to those
whose advertising had disclosures the FTC considered inadequate. The letters noted that the FTC has
provided guidance over the years on what constitutes a “clear and conspicuous” disclosure, and explains why
the disclosures in the advertisements identified by the FTC were not sufficiently clear and conspicuous for
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consumers to notice and understand them (for example, print that is too small or that contrasts poorly with the
background or text that appears in a television ad that is on the screen too briefly). The companies were then
asked to report back to the FTC on what steps they were taking to correct the problem, with a thinly-veiled
warning that those that did not make adequate corrections could become the targets of FTC investigations and
lawsuits. Finally, and most importantly, the letters provided guidance on how to make disclosures clearly and
conspicuously. The letters state that disclosures should be presented:
1. Close to the claims to which they relate, and not hidden or buried in footnotes or blocks of text people
2.
3.
4.
5.
6.
are not likely to read;
In a font that is easy to read and at least as large as other fonts the advertiser uses to convey the claim;
In a shade that stands out against the background;
For video disclosures, on the screen long enough to be noticed, read and understood;
For oral disclosures, read at a cadence that is easy for consumers to follow; and
Using words consumers will understand.
Most of these are common-sense principles that have been required over the years by the FTC and other
agencies, and they are flexible enough to allow advertisers to tailor their disclosures to the specific
circumstances. Principle 2, however, represents something of a departure from the past. The FTC and other
government agencies generally have not required disclosures to be as large as the claim, and for many
advertisements complying with this rule may be impractical or impossible. Whether the size requirement will
be applied strictly remains to be seen, but the FTC clearly is sending a message to advertisers that the sorts of
disclosures that we often see buried in the fine print are not sufficient. And, it is likely that the Consumer
Financial Protection Bureau and the state attorneys general will take the same position.
Of course, before you figure out how to make a disclosure that meets these standards, you need to decide
whether it is necessary in the first place and, if so, whether it needs to be in the advertisement or can be made
later in the transaction with consumers. There is potentially an unlimited amount of information that at least
some consumers would like to know about the product or the advertiser, but overwhelming the consumer with
too much information in an advertisement is in no one’s interest. Of course, some laws, like the Truth-inLending Act, require specific disclosures. Beyond those, the general rule is that only information necessary
to dispel a misleading impression the advertisement would otherwise create must be disclosed. But, it can be
very difficult in many situations to draw the line between information that must be disclosed to cure deception
versus information that would be useful to consumers but is not necessary to cure deception.
Finally, although the warning letters went only to companies that ran print or television ads, the FTC will
undoubtedly apply the same disclosure principles to other forms of marketing, including on web sites or in
other electronic media. The FTC has provided guidance on how to make clear and conspicuous disclosures on
the Internet in its Dot.Com Disclosures publication, available by clicking HERE.
Ultimately, it is the advertiser’s responsibility to make those disclosures that are necessary and to do so in a
clear and conspicuous way. We recommend you carefully review your current and future advertising with this
new guidance in mind.
* Joel Winston is a partner at Hudson Cook’s Washington DC office. Prior to joining the firm, he had a
lengthy career at the Federal Trade Commission’s Bureau of Consumer Protection, including as Associate
Director of the Division of Financial Practices and Assistant Director of the Division of Advertising
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Practices.
2015 CONVENTION: SAVE THE DATE
Join us at the Kiawah Island Golf Resort, Kiawah Island, SC
May 15 - 17, 2015
SCADA will be partnering with the South Carolina Department of Consumer Affairs to bring you this very
important and crucial seminar on SC ADVERTISING LAW. Please take special note of the dates listed
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below and make plans now to attend one of these seminars in your area. Formal registration information will
be sent out in the future but we wanted to provide you advanced notice of the dates and locations.
Advertising Law Seminars
Wednesday, November 5 - Myrtle Beach
Thursday, November 6 - Charleston
Monday, November 10 - Greenville
Tuesday, November 11 - Columbia
E. Sims Floyd, Jr.
Executive Vice President
DISCLAIMER:
The material, summary or information forwarded to you is for your general business information only and is
not and does not constitute legal advice or a legal opinion. You should consult with legal counsel for any
advice regarding your specific legal issue or circumstances. The information contained in this email message
may be privileged or strictly confidential information for Association Members. If the reader of this message
is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of the
communication is strictly prohibited. If you have received this communication in error, please notify us by
telephone at 803.252.0205, and delete this email.
Copyright © 2014 SC Automobile Dealers Association, All rights reserved.
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