“Dec. 7, 1941 — a date which will live in infamy.” — Franklin Roosevelt
Pearl Harbor was bombed in 1941, effectively bringing America into World War II. Former Sen. Al Franken (D-Minn.) resigned his seat on Dec. 7 of this year, joining a list of 100 or so men (to this point) who have been publicly accused of sexual harassment. The revelations of sexual harassment charges have hit a broad spectrum of professions, including politics, entertainment and news.
Some of the accused in Congress are facing ethics hearings. Men in other professions are facing public humiliation and the loss of business or careers.
This is not an article about the politics of sexual harassment. Nor am I taking any side about accuser and accused. Rather, it is an article about one of the very real requirements for businesses, including your dealers and your agency, to annually provide ongoing training in five critical areas: sexual harassment, ethics, discrimination, Safeguards and Red Flags.
Sexual harassment is against the law. It has no place in a dealership or an agency. Employees, managers, customers and vendors could be victims of sexual harassment.
The two specific types of sexual harassment are “quid pro quo” and “hostile environment.”
Quid pro quo is the type of sexual harassment that is generating today’s headlines. It simply means that someone in a position of power over another person engages in unwelcome sexual advances, requests for sexual favors, and other sexually related conduct in exchange for a job or other benefits. It can be man on woman, man on man, woman on man, or woman on woman.
Sexual harassment also exists if the conduct creates a hostile work environment or intolerable working conditions. Examples include posters, jokes, suggestive music and wolf whistles.
Engaging in sexual harassment can result in discipline, public embarrassment, or termination, and expose a dealership or agency to legal liability. If you become aware of, or even suspect, any form of sexual harassment at a dealership or your agency, it should immediately be reported to management or owners.
To provide the underpinnings of a potential defense against charges of sexual harassment, your agency or a dealership should document that initial and annual sexual harassment training has been completed for all employees.
Ethics really boils down to the Golden Rule: Do unto others as you would have them do unto you. For example, if you would be comfortable with a sales manager packing the payment on your grandma’s next vehicle purchase, you might have a problem with your moral compass. Or Grandma can’t cook.
Just like sexual harassment, ethics seems so simple, yet is very complex. Documentation of annual training on ethics may help provide a defense against potential claims.
The law prohibits not only intentional discrimination (disparate treatment), but also neutral job policies that disproportionately affect persons of a protected class and that are not related to the job and the needs of the business (disparate impact).
The law also prohibits employment decisions based on stereotypes and assumptions about abilities, traits or the performance of individuals of certain groups.
It’s illegal to discriminate against any individual regarding employment. Agencies and dealerships should adopt policies to reduce the likelihood of discrimination, such as:
- If racial information is needed, to simultaneously guard against discriminatory selection, use separate forms or otherwise keep the information about an applicant’s race separate from the application.
- Hostile work environments or harassment on the job are prohibited.
- Agencies and dealerships are required to take appropriate steps to prevent and correct unlawful harassment.
- Those who witness it are responsible for reporting harassment at an early stage to prevent its escalation.
As with sexual harassment, documentation of annual training of all employees on the agency’s or dealer’s discrimination policy could help defend or deflect charges of employee discrimination.
The federal Safeguards Rule is all about treating customers’ nonpublic personal information (NPI) as if it were your own information. Chances are, with all the recent security breaches, your information is already on the Dark Web. As an agency, you have lists and other consumer NPI from dealers that you are responsible for safeguarding.
You dealer customers must have an active Safeguards program. To prove it is a robust program, a dealer must be able to prove that they have:
- Designated a program coordinator (a.k.a. compliance officer).
- Conducted a risk assessment.
- Designed and implemented safeguards to control the identified risks.
- Overseen service providers.
- Periodically reevaluated the program.
Agencies are considered service providers and, as such, you could be called upon by your dealer clients to demonstrate that your agency has a robust program to safeguard consumer information supplied by the dealer.
An annual training program for all employees in the agency’s and dealer’s Safeguards programs should be part of the program’s guidelines.
Red Flags Rule
According to the Federales, a Red Flag is a pattern, practice or activity which signals the potential risk of identity theft. Some examples include:
- Altered or forged identification documents
- Address discrepancies
- Social Security discrepancies
- Alerts in credit bureaus
- Driver license descriptions that don’t match the appearance of the person presenting it
The Red Flags Rule requires the similar components outlined in the Safeguards Rule discussion above. It requires an annual report to the owner of the business regarding the sufficiency of the business’ Red Flags program. Part of that annual report should be certification that annual training has been provided to all employees on the business’ Red Flags Program.
Many human resource managers are aware of the need to provide annual training in these critical areas. We believe that it is so critical to a dealer’s or agency’s defense against potential claims that these five components are required modules in the ACE certified practitioner’s annual recertification.
Good luck and good selling.