ComplianceBest Practices

Compliance
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How Dealers Should Handle COVID (Co-author Kristina Vaquera)

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Another article about COVID-19?  Ugh! Snap! And oh, my! Employers everywhere are tired with having to handle this additional burden to running their business. But, now, more than ever, it’s important to mitigate your risk by being consistent and current in how you handle COVID. Don’t let your guard down now.    In this article, we will limit our discussion to the federal perspective on COVID as each state may have its own rules or requirements.  FACT: The Equal Employment Opportunity Commission (EEOC) says you can mandate employee vaccinations for employees physically entering the workplace based on business necessity subject to reasonable accommodation requirements. In essence, if it is a threat to the safety and well-being of employees and customers, you can require vaccinates. Very few jobs at the dealership may be completed by being isolated by plexiglass or office walls. Most require daily face-to-face customer contact that cannot be eliminated. FACT: If vaccines are required, employees may claim two (2) accommodations: Because of their sincerely held religious beliefs (i.e., Title VII of the Civil Rights Act), or Because of their disability (i.e. the Americans with Disabilities Act) If an employee asserts an accommodation request, call your employment lawyer for more specifics on how to handle the situation. Each case is different based on the facts. FACT:  To protect your employees and customers, ensure you have the latest signage from the Centers for Disease Control (CDC), Occupational Safety and Health Administration (OSHA) and your state safety and health departments. For example, current CDC guidance has different masking requirements depending on whether you are in a low or medium to high-risk transmission area. Click here for more information. FACT:  As the employer, you are still required to provide personal protective equipment (PPE) and sanitizing stations. Outbreaks at the dealership? If you are having frequent positive COVID situations at the store, you may need to revisit your policies and their efficacy. If you make changes, document what you are doing. Are you required to keep a log of positive cases, or report to your state? Make sure you are doing so if required. If OSHA, or any agency, visits you, they want to know what you are doing to protect everyone. Be diligent here.  FACT:  If you sell fleet vehicles to the government, or have a federal contract, then you may be a federal contractor. If so, you must follow federal COVID mandates required by Executive Order. You may also be subject to mandatory vaccine requirements if you have 100 or more employees.  FACT:  On September 9th, President Biden signed an Executive Order requiring employees of contractors doing business with the federal government to be vaccinated which builds off a previously issued Executive Order from July. President Biden also mandated that OSHA is developing a rule requiring all businesses with more than 100 employees to ensure their employees are fully vaccinated or require workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. This mandate also requires employers to provide paid time off for the time it takes workers to get vaccinated or to recover if they are under the weather post-vaccination. It is unknown if employers will have to pay for the cost of testing and/or the time associated with testing.   This situation continues to evolve. Don’t “take on” risk by being lackadaisical when it comes to COVID. Author's note: The above article is for informational purposes only and does not constitute legal advice and does not create an attorney-client relationship.
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Auto Dealers: What’s Your Total Cost of Risk (TCOR)?

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Financial statements track how you are doing financially every month. Consider measuring and benchmarking TCOR as a part of your ongoing financial statement process.   What is TCOR and why should you care about your dealership’s Total Cost of Risk (TCOR)?  Business is about keeping the money you make. Your sales and gross profits could be at record highs, but your losses might be, as well. Unless you are tracking TCOR, your money may be walking out the back door because of losses or customer problems. Consider changing the way the dealership accounts for losses at the store (TCOR).    The only way to improve in any area is to measure it and benchmark it. TCOR is a metric used to evaluate your dealership’s internal risk process. Here is how it’s calculated: Insurance premiums + self-insured losses + losses associated with lower profits and productivity + risk administrative expenses (internal & external) = Total Cost of Risk (TCOR)  Tracking this metric will help you laser focus on which parts of the dealership cost you money. Consider customizing and defining each aspect of the formula to specify the guidelines for your dealership. These guidelines will be different for every owner-operator. It’s important to be consistent in how you establish and execute the accounting at your dealership based on those guidelines. Consistency will produce accurate data leading to meaningful answers.  Here’s an example: Let’s say you sell vehicles to people who have credit challenges (secondary customers). In my experience, if you “spot” them in their vehicles, and then cannot get them financed for whatever reason, they tend to write more negative online reviews. Hopefully, you have a process at the dealership to bring them back in and try to satisfy them in some way.   (If not, start today. Most lawsuits and regulatory problems start with upset customers. In fact, a dealership in Tennessee recently had its license revoked after multiple claims of deceptive acts. Now, the owner has been convicted of twenty-one (21) felony counts. His problems all started with customer complaints. Pro Tip: After you have satisfied the customers’ concerns, ask them to “update” their review. If you ask them to “change” their review, the customers will feel manipulated, Then, it will look like the only reason you helped them was to have them update the online review.) If you tracked the personnel time and all other expenses associated with these types of issues, you would be able to determine the actual cost of taking care of these customers. This is only one aspect of TCOR. (Please refer to the formula above.) If the dealership accounts for these costs accurately, it means you can no longer hide these losses in “Other Income.” In many dealerships, “Other Income” becomes the “garbage pail” of accounts, where you charge expenses, so the managers who are paid on gross won’t complain about chargebacks.    Using the secondary customer example above - whether or not TCOR is being tracked - we can discuss which policies and procedures can be put into place to stop these types of losses. There are plenty! We will not know the effectiveness of the procedures unless the numbers are tracked accurately. Recently, I have been hearing dealers espouse a case of the “yets.”   “I haven’t been sued yet.” “I have not heard from a regulator, yet” “We haven’t had any major problems, yet.” So, I don’t need to track TCOR…  Depending on the accounting controls at the store, the losses may be bigger than you realize. Unless you are measuring these costs, it is unknowable how much money is being poured into issues at your dealership. Do you really know your risk costs? Reputational losses? Customer satisfaction charges? Please consider tracking and measuring these numbers moving forward.  I’ll bet you’ll be glad you did. 
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Risk Avoidance – Ignored

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Are you too busy selling cars to pay attention to the myriad number of lurking problems and issues that you haven’t had time to address? You would like to correct them and don’t know where to start?   Let today be the day you start. First, don’t be the businessperson and entrepreneur who doesn’t pay any attention to the “what ifs.” What if happens! A lot, in fact. Don’t avoid the risk. Start by being aware that risk is out there and everywhere. Sometimes you see it and sometimes you don’t! Unearthing unknown problems is a process and is heavy lifting. Rest assured there are steps you can take now to be a pro. Here are eight (8) action items you can start today to reduce your operational risks. Consider Doing An Enterprise Risk Assessment Doing an enterprise risk assessment means that you should examine all aspects of your operation for problems and what ifs. This is an on-going process and (1) is not accomplished overnight, and (2) should be a part of your monthly routines.  Here’s a starter checklist: 1. Is someone designated to find, respond, and resolve internet complaints? (If you are asking why you should waste resources on this, consider this internet posting example I found on a review site for a client: “If you are reading this and went through something similar at this ***** hole, email me at @***.com and I will be glad to talk with you.” This is exactly how class action lawsuits begin. Although, this is a huge exposure, it’s easily solved as a straight-forward daily task that someone must be responsible for and bring to conclusion.)   2. Do you know what to do if/when you get served with a lawsuit or an inquiry from a regulator? (Now is the time to formulate a proactive plan, not when you are under time pressure. If you have not had a problem here, consider yourself lucky. Not being pessimistic, but it’s an eventuality. This is not as simple as turning it over to your regular lawyer. Unless they are well versed in consumer law, they may not be qualified to respond. This is the worst situation because they will give you bad advice and you will likely act on it. That makes a bad condition even worse. I’ve seen it a lot and it’s ugly, expensive, and time consuming.) 3. When was the last time you had someone independently check your website for advertising compliance to ensure all advertising laws are being met? (Are you unknowingly using bait and switch advertising? How you read and/or changed your disclaimers to reflect today’s advertising requirements? Recently, I reviewed a dealership’s websites and quickly found seven (7) violations within a three (3) hour quick view. Each and every mistake was actionable by an attorney, regulator, Attorney General, the FTC, or the CFPB (you get the picture here). Several mistakes made the dealer vulnerable to Unfair and Deceptive Acts and Practices (UDAP) laws under which the potential damages are tripled. Tripled! Plus, if sued, the dealer would be liable for the consumer’s attorney’s fees, which will be substantial. $70,000 - $80,000 is not an unusual number, sometimes it’s more. This is a disaster easily avoided by having a third party check your ad content regularly. This should be a regular monthly check as you change your advertising frequently.) 4. Gotcha! The local television news van shows up and wants to do a story about a customer’s broken vehicle that you (personally) don’t even know about. What do you do?   (Do you have a media policy? Do your employees know what to do or where to direct the reporter?  The dealership should have a written media policy signed by each and every employee with a clear delineation about who is authorized to speak to the media. Usually, by the time the news crew arrives, the station already has the customer “in the can,” i.e. the customer’s interview has already been recorded and approved by the station manager. So, the only thing left is for the news crew to interview you on camera and get your side of the story. Sometime, stories can be stopped with facts but you have to be prepared and know how you are going to handle these situations. PRO TIP: Do not ever submit a written comment on your letterhead. Then, everyone who sees the story on television sees your logo with the response! That’s not helping your reputation.) 5. The Internal Revenue Service arrives wanting to talk about IRS Cash Reporting requirements. Are you ready?   (This has nothing to do with income tax. This is how you report customer “cash” transactions to the IRS in compliance with their regulations. Fines for willful non-compliance can be up to $5.5 million and up to five (5) years in jail. Did you know that a traveler’s check is cash? Did you know that a cashier’s check for $10,000 and under is considered cash? Do you have a written policy about how your dealership handles this issue? Did you send the customer a letter at the end of the year indicating that you filed a Form 8300 with the IRS? Big liability here. Get on it.) 6. A mechanic is driving a unit that loses steering or the brakes. It careens into your used oil tank which begins leaking and is running toward the drain. Do you have a plan for this? (First, do you have a written spill plan? Have all of your employees signed off on it? Remember in our business, if it’s not in writing, it doesn’t exist. It’s very difficult to keep up with all the pollution and environmental regulations. Do you have pollution insurance to cover a spill? Did you know you can be personally liable for this type of accident? What happens if your waste oil vendor dumps your used oil in the river? Do they have insurance to cover you? Are you tracking the insurance of your vendor? These “what ifs” get messy, quickly.) 7. A regulator shows up and asks to see your training records on xxx. What do you give them? (Twice-monthly training for your employees is considered “best practices.” Even more importantly, when you train, you must have employees “sign off” on the training materials. Then, you demonstrate to the regulator by providing your training materials with the employee’s signature. If you can prove an attempt to get it right, the regulator will generally be more lenient with you. If you appear to totally disregard this particular area of compliance, then buckle your seatbelt. If a regulator arrives at your dealership, generally they won’t leave without you writing them a check. The question is whether that check will be a few thousand dollars or a “5” or “6” figure check. Oh, and do you have any insurance which might cover these instances?) 8. You receive a “charge” from an employee who goes to the Equal Employment Opportunity Commission (EEOC) claiming that there’s an atmosphere of sexual harassment and discrimination. Now what? (First, have you considered having insurance to cover this type of claim? Second, do you have an Employee Guidebook that has policies on how to cover these issues? If you do not, you leave yourself wide open and vulnerable.) So, there are eight (8) actionable items for you to consider. Ignore these at your own peril because when one bites, you’ll hurt.  
Is Your F&I Compliance "Toast?"

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What does criminal conduct have to do with F&I and my new toaster? Here you go... I recently bought a toaster. (Please hold your applause until the end of the article.) The toaster is so generic it does not even have a brand name on the instructions. "Instructions," you ask? For a toaster?  Yes, it came with a full-color, multi-step instruction, which is awesome.  There are "Single bread toasting" instructions in case you might not want to...you know...toast two pieces of bread at the same time. And I quote, "Single bread operation may cause uneven toasting result due to nonuniform heat distribution from the empty slot."  So, I am getting a toaster, a grammatical mistake, and entertainment all for the price of a toaster. But wait, there's more. It gets better! And here is the tie-in with our business: It shows actual, color photographs of pieces of toast corresponding to the level dial on the toaster, ranging from level 1 (lightly toasted) to level 6 (call the fire department). So, they are asking you to compare the color photos with your toast. I love this! Examine and compare. This is risk mitigation at its absolute finest.  So when was the last time you examined, with a clear head, your F&I practices? When was the last time you (or a trained third party) compared a checklist to a deal folder for compliance? Are your deals "warm and toasty?" Or, do you need to call the Fire Department to hose them down?   If your dealership strives toward a better culture of compliance, consider this checklist when reviewing your F&I practices:  This is a partial list representing only twenty (20%) percent of the items that you should be checking.   Examining these practices will help prevent so many problems and allegations, including (but not limited to) product stuffing (quoting a payment that includes aftermarket products), discrimination, income manipulation, Suspicious Activity Reports, and fraud. Some of the items above are just the law, and you are required to comply.   Financial institutions are required to file Suspicious Activity Reports if they believe you have submitted false information to them. It is a requirement for them, not an option.  Some of these items may be obvious, but are you actually checking? Or have you hired a third party to check? If a regulator walked into your dealership, could you demonstrate that you perform periodic audits to check your F&I department? Did you know that Section 8 2. of the United States Sentencing Commission considers compliance activity when judges determine the length of jail time? You must "(1) exercise due diligence to prevent and detect criminal conduct; and (2) otherwise promote an organizational culture that encourages ethical conduct and a commitment to compliance with the law." It is worth noting, the Consumer Financial Protection Bureau (CFPB) recently announced they are hiring additional lawyers for compliance enforcement.   Don't wait until smoke is rising and alarms are blaring. Implement a compliance program now, or you will be a level 6 piece of toast.  
What You Should Pay Attention to When Selling Parts Online

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Online parts and accessories eCommerce is a great source of revenue for many dealers. By moving their parts departments online, dealerships have the opportunity to tap into a market set to hit $20 billion by the end of this year. However, a 2018 Supreme Court ruling could be putting dealerships and their parts business at risk if they do not pay attention. South Dakota v. Wayfair, Inc.  ruled that states are allowed to charge taxes on purchases made from out-of-state sellers, even if the seller doesn’t have a physical presence in that state. What this means for dealers selling online is that if they are selling to customers in different states, they are on the hook for charging taxes to  the states the customers live in . It’s important that dealerships review the collection requirements and collection compliance regulations to protect themselves from unsolicited tax violations. It’s also important to educate themselves on the ways they can simplify taxes with regards to what are called  marketplace facilitator laws . Understanding a nexus To be liable for the collection and remittance of sales tax, a dealer must achieve a nexus in the state they are conducting business. There are a few ways a nexus can be established; however, the two most common are having a physical presence within the state they’re selling to and meeting an “economic threshold.” The criteria for a  physical nexus  can be met by having any of the following within that state: A physical storefront  A product warehouse Storage property within a facility Fulfillment centers On the other hand,   an  economic threshold  is based on a specific volume of transactions or revenue. There are more than 30 states that participate in these laws and many of them have different thresholds. This is why it’s important for dealers to find the least tedious way to monitor nexus compliance. Paying the states that you owe money Once your dealerships figures out the nexus for the states it is doing business or has done business in, you have to register with that state, begin collecting taxes, and remit tax payments to those states. This is where things get tricky. Many states have multiple tax jurisdictions that you might need to register for separately. Additionally, some states differentiate between sales tax, seller’s use tax, and consumer’s use tax on registration applications and tax returns. So, in addition to determining where to register, your dealership has to figure out which taxes it’s responsible for. It might sound like an overwhelming process, but the most important thing to do first is to get registered — collecting taxes without registration  is  illegal. Once the registration is complete, your dealership will have to start collecting taxes immediately. Avoid the risks When selling online, state government entities expect you to not only  charge  sales tax but to collect and remit it as well. Since sales tax is one of the largest income sources for states, they don’t take it lightly. If you fail to charge the correct sales tax to your buyers, they will come for you and expect you to pay that money somehow. This puts your dealership at risk of being audited, which could cost your dealership a lot of money. So, when selling parts and accessories online, it’s important that you are filing all the right taxes appropriately to avoid violations. Find a solution to streamline the process Dealers need the right people on their side when it comes to collecting and remitting taxes if they’re selling online across state lines. However, your internal finance team may not have the time or resources to handle all of the calculating, collecting, remitting, and reporting themselves. That’s why it may be easier to find a vendor that’s experienced with sales tax compliance. For example, RevolutionParts builds and operates online part-selling platforms on behalf of our partners. We are considered a “marketplace” with the legal authority to file sales taxes on behalf of our customers. We make sure that the proper tax is collected, dealers are in compliance with tax regulations, and they have access to all reports distributed to tax authorities. Find your dealership a partner that’s looking out for your best interest. The last thing we want to see is a dealer being audited for improper tax filing! Make sure you understand  the tax laws in the states you sell in , and that your dealership has the means necessary to collect and remit them legally. Sources: 1. Avalara, Sales tax laws by state 2. AICPA, South Dakota v. Wayfair
Importance of Whistleblower Hotline as Part of Dealership Comprehensive Compliance Program

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No matter the size of your car dealership, it is in your best interest as a dealership owner to put tools in place that protect the reputation of your organization. With each new car dealership employing an estimated 70 people on average in 2019, the best place to start is within your company. Implementing a comprehensive compliance program that consists of regular audits, appointing a compliance officer, and providing online training is a solid foundation. Unfortunately, these steps are not always effective when it comes to rogue employees.   While the majority of your employees are good workers who hold the reputation of your dealership in high esteem, all it takes is one employee with bad intentions to cause problems. That’s why a whistleblower hotline is a must for any dealership’s comprehensive compliance program. Today, we’ll be exploring what a whistleblower hotline is and how it can benefit your car dealership. Let’s get started! What is a Whistleblower Hotline? A whistleblower hotline is a service that enables your employees to anonymously report unethical and/or unlawful behavior within the workplace. When implemented as part of a dealership’s comprehensive compliance program this can be a powerful tool in reducing the chance of illegal company actions. Car dealerships operating with a whistleblower hotline in place have a second line of defense against rogue employees and protect the overall reputation of the company as a result. Once a whistleblower hotline is in place, your employees will have the power to submit anonymous reports that are directed to designated persons registered by your dealership. This streamlines the process of identifying and fighting against inappropriate and unlawful actions within the workplace. The Benefits of a Whistleblower Hotline If your car dealership has yet to implement a whistleblower hotline as part of its comprehensive compliance program, you may be interested to learn how you can benefit. There are a number of benefits associated with a whistleblower hotline ranging from the protection of assets and reputation to the detection and prevention of non-compliant behavior. Let’s explore those benefits in-depth. Building Trust One of the largest benefits of a whistleblower hotline is that it builds trust within your company. When unethical or illegal conduct is happening within your dealership, there is at least one person (or many) that knows what’s going on. Unfortunately, those who are aware of misconduct may be reluctant to report it due to fear of retaliation. A whistleblower hotline is an effective way to encourage your employees to speak up. By providing an anonymous method for your employees to report misconduct, they will feel more comfortable in reporting wrongdoings. This builds trust between you and your employees and strengthens a focus on transparency. Quicker Detection of Misconduct As you can probably guess, when a dealership’s employees feel more comfortable in reporting misconduct, wrongdoings are detected much more quickly. When you are made aware of misconduct sooner, you’ll have the power to put a stop to it immediately. The protection of the dealership’s assets and reputation is key. The rapid detection of misconduct is especially important for small dealerships. With the average duration of fraud until detection being 18 months, it is clear that knowing about instances of fraud as early as possible can be the difference between staying in business and losing everything. A whistleblower hotline means you’ll know about illegal behaviors sooner and save money as a result. Reducing the Risk of Violations and Legal Battles The purpose of a dealership's comprehensive compliance program is to ensure that your dealership meets auto dealer laws and regulations on both federal and state levels. Without meeting legal requirements, your dealership is at great risk of incurring penalties. When implementing a whistleblower hotline into your comprehensive compliance program, you’re actively reducing the risk of hefty fines and even criminal penalties.  When your employees have a method at their disposal to sound the alarm on regulatory violations early on, there is a greatly reduced risk of violations and legal battles. It’s a known fact that regulators are more likely to lessen or eliminate penalties when dealerships have practiced due diligence in addressing issues.