Fixed Ops Journal - May 2016 - (Page 8)

FIXED OPS JOURNAL ● Service advisers and the U.S. Supreme Court | PAGE 48 | LEGAL LANE ■ Respond carefully to discrimination claims The case awaits trial on Salerno's claim that he was unlawfully terminated in retaliation for complaining about the defendants' wage practices, said Salerno's lawyer, Michael Bace, of Boston. D ealership management should be alert to implicit bias in the workplace to avoid potential discrimination lawsuits. And managers should not retaliate if an employee levels a discrimination charge. Those are two lessons from a pending disability discrimination and retaliation lawsuit against a Peoria, Ill., dealership, said Ethan Cohen, the Equal Employment Opportunity Commission lawyer litigating the case on behalf of an African-American former service manager at Green Chevrolet Inc. According to the EEOC lawsuit, the store told Keith Douglas on the day he returned to work after starting treatment for kidney failure that he was being transferred to a new position. Douglas said he thought the move would lead to a salary cut and possible termination. Douglas delayed the transfer as long as possible, contending that his health didn't prevent him from staying in his current position. The suit alleges that the dealership then wrongfully terminated him in March 2013 when he asked management why white co-workers weren't being considered for the new position. Dealership lawyer Bradford Ingram, of Peoria, said he could not comment on the case but in legal papers Green Chevrolet denied that "any of its employment practices were unlawful." Cohen told Fixed Ops Journal that when Douglas got sick, "The folks at the car dealership initially reacted very well and got him to the hospital." But, he added, "From that moment on they were telling him they wanted to move him to a different position." The suit says, "Douglas was fired in retaliation for his opposition to unlawful employment practices." Cohen said research has shown that virtually everyone has implicit biases and that managers should ask themselves whether they would handle situations differently if an employee were of a different race. He said a trial is scheduled for February 2017 in U.S. District Court. ■ No pay for maintaining tools, cleaning shop C an mechanics legally work without pay for time spent on "ancillary tasks" such as cleaning the shop, interacting with cus- PAGE 8 MAY 2016 ■ Swift action helps defeat retaliation suit A tomers, handling paperwork and maintaining tools? Yes, a Massachusetts judge has ruled, in a proposed class action on behalf of mechanics who earn $26 per flat labor hour while servicing vehicles but are paid nothing for other tasks. That's the arrangement that mechanics at Baystate Ford Inc., in Easton, and two Clark & White stores in Newton agreed to when they were hired, Middlesex County Superior Court Justice Robert Gordon said in ruling that the practice doesn't violate the Massachusetts wage law - as long as the dealerships comply with overtime and minimumwage requirements. "This was an understood feature of the bargained compensation structure," Gordon said in dismissing a wage violation claim filed by Ralph Salerno, a mechanic at Baystate Ford and Clark & White from 2012 through 2014. The suit named the two companies and their owner. According to court papers, Salerno was paid for a guaranteed 40 flat-rate hours a week at $26 an hour, assuming he worked a full schedule without time off. "At issue is the legal mandate that employers honor the promises they have made to employees by paying them the agreed compensation they have 'earned' for their work," Gordon said. And here, there was no agreement to pay a "straight hourly rate for all hours worked." Paying mechanics by the flat-rate hour is a "fairly common arrangement," said a lawyer for the dealerships, Jeffrey Fritz, of Boston. "It incentivizes your mechanics to work efficiently." Tennessee dealership's swift response to a legations of on-the-job sexual harassment helped defeat an ex-manager's retaliation suit. A federal judge dismissed the suit by a former service manager who claims she was targeted for retaliation after reporting that the male general manager had sexually harassed a female subordinate. Lisa Smelser failed to present sufficient evidence of a hostile work environment or that she was constructively discharged - a resignation caused by a hostile work environment - by Miracle Chrysler-Jeep-Ram in Gallatin for reporting the incident, U.S. District Judge Aleta Trauger said. According to the suit, the store hired Smelser as a service writer in 2005 and promoted her to service manager, the highestpaid position in the service department. In 2011, she reported to the store's controller that General Manager Tim Galvin had been sending unwanted "text messages of a sexual nature" to a co-worker. Galvin stopped doing so on orders from the controller. Then in 2012, Smelser reported to the store's owner that another female employee had complained of "sexually inappropriate conduct" by Galvin. The owner reprimanded Galvin, who is his son, warning that he'd be terminated if there were any similar future allegations, the decision said. Smelser's civil rights suit alleged that retaliatory harassment followed her reporting the second incident - specifically "verbal abuse" by Galvin and the controller - and that she felt forced to quit. In dismissing the case, Trauger said there was no claim that Smelser personally had been sexually harassed or that the store had cut her hours, issued a written reprimand or reduced her salary or benefits. Nor had Galvin called her inappropriate names or sworn at her. ■ - Eric Freedman ❙

Table of Contents for the Digital Edition of Fixed Ops Journal - May 2016

Fixed Ops Journal - May 2016
Editor’s Letter
Service Counter
Legal Lane
Profit Builder
‘Grease monkey’?
Photo story
Richard Truett
High light
Service satisfaction
90-second oil change
Financing fixes
Supreme Court
Tech trends
Top 50
5 Minutes With
Shop Talk
Fixed in Time

Fixed Ops Journal - May 2016