< Previous10OCADA Free Employment Law HotlineAreas Of Assistance• Hiring Issues • Employee Leaves• Accommodating Disabilities• Wage, Commission and Piece-Rate Pay Questions• Employment Policies• Occupational Safety and Health• Employee Discipline and Termination• Overtime Exemptions• Immigration Questions• Handling Harassment and Discrimination Complaints• Labor Relations• COVID-19 Related GuidanceOVER 450 CALLS FROM OCADA MEMBERS IN 2020OCADA Dealer Members can call the Employment Law Hotline for free legal consultations from the attorneys at Fisher & Phillips, LLP. Your managers can get expert advice to address employee challenges BEFORE they become litigation. With this service, basic employment law problems or concerns can be resolved in just one phone call! REDUCE YOUR EXPOSURE, REDUCE YOUR EXPENSES - CALL OCADAdealerships877.DLR.CPAS | dealerships@dhg.com Assurance | Tax | Advisory | dhgdealerships.comTalentPerformance & GrowthRisk & RegulatoryMergers & AcquisitionsSuccessionInnovation, Technology & DataWE LISTEN. WE UNDERSTAND. WE COLLABORATE.We leverage our extensive knowledge of and strategic relationships within the industry to help identify best practices and provide key services related to these dealership trending topics:DRIVING RELATIONSHIPS FORWARD3,000+Dealership Clients Served160+Dedicated Dealerships Professionals50States with Dealership ClientsThe Coronavirus Aid, Relief, and Economic Security (CARES) Act provided an opportunity for employers to generate a refundable tax credit used to offset their employment taxes and apply for a refund for any excess credit generated through December 31, 2020. The COVID-19-related Tax Relief Act of 2020, as included in the Consolidated Appropriations Act, 2021, further extended the Employee Retention Tax Credit (ERTC) through June 30, 2021, and included certain enhancements that apply starting January 1, 2021.Below, learn how employers can qualify for the ERTC and get details into credits available during qualified quarters between March 13, 2020, and June 30, 2021.12New Federal COVID-19 Act Extends and Expands Employee Retention Tax CreditBy Rob O’Neill, CPA; Seth Doorn, CPA, JD; and MaryCaitlin Willcuts; Moss AdamsTThe 56th Annual OCADA Golf Tournament was a great day of golf at Mission Viejo Country Club. Golfers enjoyed reconnecting with old friends (at a social distance) and a day of golfing, contests, and fun sponsored festivities throughout the course. Thanks to the Golf Tournament Chairman Al Parajeckas and Association staff for planning an event with numerous safety protocols in place to keep attendees healthy and entertained.12Paycheck Protection Plan Loan and ERTC Under the new law, the exception for Paycheck Protection Program (PPP) loan recipients to also claim the ERTC has been waived and applies retroactively. A business or affiliates of a business who received a PPP loan may now go back and claim the ERTC if the business was experiencing a partial suspension of operations—or if they met the 50% reduction in gross receipts test—for the eligible calendar quarters in 2020. PPP recipients may also qualify during the eligible 2021 quarters if they continue to experience a partial suspension of operations or meet the 20% reduction in gross receipts test.Qualified wages for the ERTC don’t include wages paid from forgiven PPP proceeds.Claim the Credit RetroactivelyFor employers who didn’t claim the ERTC on their originally filed IRS Forms 941, they may retroactively claim the credits using the IRS Forms 941-X. The same wages used to calculate the ERTC can’t be used to calculate other credits, such as the Work Opportunity Tax Credit, Employer Paid Family and Medical Leave Credit (IRC 45S), or other disaster retention credits. Employers have three years from the date the original return was filed, or two years from the date the taxes were paid, to file an IRS Form 941-X.Next StepsIf you have questions about these credits or would like assistance determining if your business is eligible, calculating the credit, or claiming the credit, please contact a trusted tax professional. Moss Adams offers a web-based screening tool, MaxCredits® at www.mossadams.com/maxcredits, which can help you reduce the administrative burden of pursuing credits.A version of this article was published on mossadams.com on January 12, 2021. Rob O’Neill has practiced public accounting since 1998. He provides state and local tax credit advisory and compliance services to large multistate and multinational companies and their owners in a range of industries. He can be reached at (503) 478-2339 or rob.oneill@mossadams.com.Seth Doorn, CPA, JD, has specialized in State and Local tax since 2010. He provides state and local tax advisory services to clients in a variety of industries including health care, technology and manufacturing. He can be reached at (503) 471-1295 or seth.doorn@mossadams.com.MaryCaitlin Willcuts has practiced public accounting since 2010. She focuses on hiring and wage-based incentives and manages the Moss Adams MaxCredits® program, which speeds the screening process for federal and state tax credits. She can be reached at (503) 478-2309 or marycaitlin.willcuts@mossadams.com.Assurance, tax, and consulting offered through Moss Adams LLP. Investment advisory services offered through Moss Adams Wealth Advisors LLC.Retail WarrantyReimbursement.Better Bottom Line.WE ARE YOUR BEST CHOICE…Top 8 reasons Bellavia Blatt should handle yoursubmission for Retail Warranty ReimbursementTHE PIONEERS IN RETAIL WARRANTY REIMBURSMENTNATIONAL EXPERTISELeonard Bellavia and Steven Blatt have represented auto dealers across the nation for over 33 years and the firm is regarded as the pre-eminent authority for obtaining retail warranty parts and labor reimbursement in 48 states.EARNINGSOur average dealership client has realized $15,000 to $20,000 in additional profits per month. We will show you how to maximize your dealership’s blue sky value.RESULTSBellavia Blatt has successfully handled several thousand retail submissions on behalf of dealers for the past fifteen years. And because of this unmatched experience, our results yield the highest possible increases on warranty parts and labor.REPUTATIONBellavia Blatt is recommended by state dealer associations, CPAs and attorneys nationwide. We are widely regarded as the industry leader when it comes to obtaining retail warranty reimbursement for parts and labor.KNOWLEDGEWe carefully analyze your data, retail repair orders and trends to ensure your warranty reimbursement on both parts and labor is maximized. We know everything there is to know about your state law, as well as your manufacturer’s policy and procedure.LAW FIRM ADVANTAGEWe offer a low flat fee and never charge a contingency. Our fees are much lower than ”consultants” who take a percentage of your increases. As a law firm, we are held to the highest standards and have more resources and options available for favorable outcomes.LEGAL STRATEGIESOur team of attorneys collaborate to identify optimum markup yields and legal strategies to ensure you receive the highest possible retail reimbursement.HASSLE FREE!Our solution is turnkey. Our staff of analysts and attorneys do all of the work for you. As we submit on your letterhead, your manufacturer will not know that you have retained us, but we are there every step of the way.15263748MULTI STATE EXCLUSIVE ENDORSED PROVIDERFor more information, please reach us at info@DealerLaw.com, visit DealerLaw.com/warranty or call 516-873-300015WHAT OUR CLIENTS SAY:For more information, please reach us at info@DealerLaw.com, visit DealerLaw.com/warranty or call 516-873-3000I am extremely satisfied with the service provided by Bellavia Blatt. We hired them to apply for an increase in our retail parts warranty markup percentage. Their pricing is a very reasonable flat fee, the process is very clear, and they are great about responding to questions, so you know everything you need to up front. There is not one thing that was negative throughout the process and, if we had to do it again, we would choose them.ANGIE LEEMANS East Moline Chevrolet - IllinoisBellavia Blatt was instrumental in assisting our auto group with our warranty reimbursement project. We had raging success with our submissions, and the process was painless. The customer service from the team was great. We could not have pulled this off without their dedication and assistance.CHAD LEAVITT Findlay Automotive Group - NevadaDealer Law was instrumental in assisting our dealership in obtaining a very significant warranty labor rate increase last year. We were already receiving retail for warranty parts, but Dealer Law was able to obtain an increase on that, too! They did the work investigating our customer pay rates and submitted the evidence along with the increase request to GM on our behalf. The increase in gross profit more than paid for the Dealer Law fee in just a few months. The advice we received on how to maintain our ELR is beneficial to receiving additional increases in years to come. We look forward to working with them again.KAREN FRYE Controller Orange Buick GMC - FloridaI wanted to thank Bellavia Blatt for the efforts and services provided with regard to our warranty reimbursement request. The documentation required to be collected, analyzed and submitted to ensure the greatest possible increase is not something that we were prepared to undertake. We have realized a substantial increase in profits as a result of your firm’s activities. My only regret is that we did not engage Bellavia Blatt earlier.RANDY PHILLIPS Morris Cadillac Buick GMC, Inc. - OhioWhen Scoggin-Dickey decided to pursue a request with General Motors in 2016 for a warranty reimbursement labor and parts increase, we contacted Bellavia Blatt. They guided us through the process and was extremely informative and knowledgeable of the required procedures, thus putting us at ease with the request process. The team was timely in putting together the information that GM needed and drafted the letters required for us to request the increase. This rewarded Scoggin-Dickey with a substantial increase in both the labor and parts reimbursement from GM. One year later, GM requested an audit of Scoggin-Dickey concerning the warranty reimbursement increase and Bellavia Blatt drafted another letter responding to that audit. GM allowed us to continue with the increased rates in part due to this law firm’s involvement. I would certainly recommend Bellavia Blatt to any dealership wanting to move forward with this procedure.TERESA LANGSTON Controller Scoggin-Dickey - TexasI am completely satisfied with the return on our investment after having employed Bellavia Blatt to review our GM parts warranty reimbursement. We have almost doubled our monthly gross profit retention on warranty parts at our GM store. If a dealer is not getting retail reimbursement for parts, I would highly recommend Bellavia Blatt as the solution to increasing warranty parts margins to near-retail levels. The repair order records submission process to the manufacturer was smooth and the cost of the service was recovered within a few months after receiving the higher margins on warranty parts achieved as submitted by your firm.JOE PROFETA Parts and Service Director Smail Auto Group - Pennsylvania16By Greg Ferruzzo, Ferruzzo & FerruzzoDealers Should be Vigilant in Maintaining Telemarketing Legal Compliance to Avoid Costly Class Action LawsuitsThe world of digital marketing is consistently changing as mobile technology continues to evolve. In contrast to the fast-moving world of digital technology, the law moves at a glacial pace. However, there are many plaintiffs’ lawyers out there who are always looking for ways to apply the existing consumer protection laws to new developments in the market. We have noticed a recent trend of dealerships from New York to San Diego being served demand letters and class action lawsuit filings concerning violations of the Federal Telephone Consumer Protection Act. As dealers look to innovative new ways to reach potential customers, it remains very important that legal compliance with telemarketing laws not be neglected.The Federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. section 227, is one such law that has been around for a long time. The TCPA has been on the books since 1991, the age of fax machines and dial-up internet. At the time this consumer protection law was enacted, Congress sought to protect people from the annoyance of interrupting their dinners by receiving sales calls on their home telephones. The world has changed much since the early 1990s, and the way telemarketing is carried out today is much different than it was. The risks of violating the TCPA remain. The TCPA has been amended several times over the past 29 years to address changes in the digital world, including the proliferation of text and email messages which have replaced phone calls and facsimile transmissions.In 2003, two federal agencies – the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) – promulgated rules that together created the National Do Not Call Registry. The National Do Not Call Registry is a list containing the personal telephone numbers of telephonic subscribers who have voluntarily indicated that they do not wish to receive unsolicited calls from commercial telemarketers. California has adopted the California Telephone Numbers on the Federal “Do Not Call” Registry as the California Do Not Call Registry. (California Business & Professions Code section 17590) Commercial telemarketers are generally prohibited from calling phone numbers that have been placed on the Do Not Call Registry, and they must pay an annual fee to access the numbers on the Registry so that they can delete those numbers from their telephone solicitation lists. The National Do Not Call Registry’s restrictions apply only to telemarketing calls made by or on behalf of sellers of goods or services, and not to charitable or political fundraising calls. The prohibitions on unwanted solicitations via mobile devices have numerous exceptions. These exceptions have changed over the years. A seller may call consumers who have signed up for the National Registry if it has an established business relationship with the consumer or if the consumer has given that seller express written permission to call. Telemarketers generally have three months from the date on which a consumer signs up for the Registry to remove the consumer’s phone number from their call lists. Consumer registrations remain valid for five years, and phone numbers that are disconnected or reassigned will be periodically removed from the Registry.The TCPA prohibits the use of automated dialers and prerecorded messages in non-emergency calls to cellular phones. A plaintiff who has received calls or texts in violation of the TCPA may sue to enjoin further violations and may also recover statutory damages in the amount of $500 per violation, or actual monetary loss from such a violation, whichever is greater. The law further provides that violations which are “knowing and willful” may be increased to three times the amount ($1,500) per violation. Such monetary penalties can quickly multiply into enormous damages claims in class action lawsuits.17CONCERNED WITH THE COST, COMPLIANCE AND SERVICING OF YOUR DEALERSHIPS’ INSURANCE?EPIC CAN HELP WITH YOUR BENEFIT AND BUSINESS INSURANCE NEEDS• CNCDA's only licensed broker for Health and Business insurance• The largest insurer of auto dealers in the state• The only broker with proprietary products specific to dealerships • 15TH largest brokerage firm in the nationWe know dealerships have specific needs and issues, we are here to help. Please contact us for a free evaluation of your insurance and HR/compliance packages.EPIC IS© EDGEWOOD PARTNERS INSURANCE CENTER | CA LICENSE 0B29370EPICBROKERS.COMAlison McCallum 949.417.9136alison.mccallum@epicbrokers.comEric Kitei 949.417.9145eric.kitei@epicbrokers.comAS THE CNCDA’S ONLY LICENSED BROKER FOR HEALTH AND BUSINESS INSURANCE AND THE LARGEST INSURER OF AUTO DEALERS IN CALIFORNIA, EPIC IS UNIQUELY POISED TO HELPThe FTC has enforcement and administrative responsibilities for a long list of federal laws and regulations. Among them are the TCPA and the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. sections 6101-6108). In addition to the FTC, the FCC, which regulates interstate communications by radio, television, wire, satellite, and cable, is also charged with the responsibility to implement and enforce communication laws and regulations. Under federal law, the FTC has the authority to prescribe rules prohibiting deceptive telemarketing acts and practices. Specified federal law gives any state’s Attorney General authority to bring a civil action in federal court to enjoin those who violate the rules and enforce compliance with the rules of the FTC. In addition to enforcement actions by any state’s Attorney General, the law also provides for civil actions to be filed by private persons. These civil actions permit the recovery of monetary damages and restitution in addition to the recovery of costs of suit and reasonable attorney’s fees and expert witness fees. Substantial civil penalties may also be imposed for up to $10,000 per violation. State Attorneys General and plaintiffs’ lawyers will continue to investigate and bring enforcement actions against telemarketing companies. The courts have often certified TCPA lawsuits as class action lawsuits because the proof of common violations among a class of persons may be readily established. In such class actions, the statutory violations may be multiplied by a class of persons affected and result in significant liability.Many dealers hire third party marketing companies to send out marketing messages via text message to prospective customers’ mobile devices. Contracting this marketing function out to a third-party vendor will not insulate a dealer from liability for subsequent violations of the TCPA. In order to defend against claims, it is important to maintain a robust compliance program. Not only is compliance important, but retaining the appropriate documentation to prove compliance with the applicable regulations when a lawsuit or violation notice is received is also important.The TCPA affords a private right of action to any person who has received more than one telephone call within any 12-month period by, or on behalf of the same entity in violation of the regulations prescribed under the TCPA. If a third-party vendor sends an unsolicited message to a customer’s mobile device in violation of the TCPA on behalf of a dealership, the law will hold the dealership liable for the violation.Because dealers may be held liable for the actions of third-party marketing companies who send unsolicited advertising messages to mobile devices, ZURICH INSURANCE.FOR THOSE WHO TRULY LOVE THEIR BUSINESS.This is intended as a general description of products and services available to qualified customers through the individual companies of Zurich in North America and is provided solely for informational purposes. Nothing herein should be construed as a solicitation, offer, advice, recommendation, or any other service with regard to any type of insurance or F&I product underwritten or distributed by individual member companies of Zurich in North America, which include Zurich American Insurance Company and Universal Underwriters Service Corporation (1299 Zurich Way, Schaumburg, IL 60196). Certain restrictions may apply. All products and services may not be available in all states. Please consult with your sales professional for details. ©2020 Zurich American Insurance Company.For 98 years, we’ve been a leader in the automotive industry, and that hasn’t changed during these challenging times. We continued to bring value and support to some of the largest and most successful dealerships in the nation. These uncertain times inspired us to be nimble and develop creative solutions for our customers even when their doors were closed. • Adapting our F&I selling system for virtual presentations • Conducting hundreds of training webinars• Complimentary access to online F&I consumer education resources • Generating more than 4,000 service contract sales through our direct marketing programWe’ve built and delivered tools to help you succeed. These innovative initiatives helped many of our customers and Zurich Direct Markets attain record breaking results.We stand stronger than ever in our commitment to help dealerships thrive and increase profitability.TOGETHER WE’LL CREATE A STRONGER FUTUREContact Myra Miell at 206-396-1323or visit zurichna.com/automotiveSTANDING STRONGIN OUR COMMITMENTTO AUTO DEALERS.GREGORY J. FERRUZZO is a Partner and has been with Ferruzzo since 1993. His primary focus has been civil litigation for corporate business clients, including many automobile dealerships. During this time, he has practiced in the area of civil litigation in both the state and federal courts, which include several successful jury trials. He has represented a variety of business clients in contract disputes, partnership and corporate dissolutions, fraud and unfair business competition claims, sexual harassment and wrongful employment termination cases. The Firm has been representing auto dealerships in Orange County and surrounding areas from 1983 through the present.it is important to know what your third-party vendor will be doing and verify that their marketing campaign is compliant with applicable laws and regulations. Questions should be asked of your third-party vendor to evaluate whether or not the vendor’s marketing campaign is legally compliant. Your insurance may not cover violations of the TCPA and indemnity agreements with a third-party vendor may provide no safety in the face of multi-million dollar claims.The policies and practices of the third-party vendor should be reviewed by competent counsel and confirm that they have the proper training and procedural safeguards in place to prevent violations of the TCPA and other similar laws from occurring. Because this area of the law is complex, it is prudent to retain the advice of an attorney experienced in the laws and regulations governing such advertising. Some of the applicable industry “best practices” you should inquire about include adequate employee training of the marketing staff. They should have written telemarketing policies. These policies must include verifying that the customers to whom calls/messages will be sent have provided legally sufficient prior consent or have not asked to be added to a Do Not Call Registry. Inquiry should be made as to what steps will be taken to ensure that persons who are on the Do Not Call Registry or the No-Call lists are not contacted. How will compliance with time restrictions (no calls/messages between the hours of 9:00 pm and 9:00 am) be guaranteed for the applicable time zone of the recipient? It should be clear what jurisdictions the recipients of any marketing messages are in so that it can be determined what rules apply. Regulations require that recipients of unsolicited telemarketing messages be provided with an “opt-out” notice. Are the required opt-out notices legally compliant? Record retention is also an important fact to consider. Records should be kept which evidence compliance with applicable regulations. Those records should be maintained for a period exceeding any applicable statute of limitations period.Violations of Consumer Protection Laws such as the TCPA are a trap for the unwary. As one Federal Court of Appeals noted in a protracted TCPA lawsuit against Bank of America, “Rarely has one phone call led to so much litigation.”Running a dealership comes with its share of uncertain terrain. But one thing is certain. Our Dealer Financial Services team is dedicated to being by your side with the resources, solutions and vision to see you through. Bob Ludwig Senior Vice President robert.ludwig@bofa.com 949.287.0635bofaml.com/dealerMaking business easier for auto dealers.Especially now. “Bank of America” and “BofA Securities” are the marketing names used by the Global Banking and Global Markets divisions of Bank of America Corporation. Lending, other commercial banking activities, and trading in certain financial instruments are performed globally by banking affiliates of Bank of America Corporation, including Bank of America, N.A., Member FDIC. Trading in securities and financial instruments, and strategic advisory, and other investment banking activities, are performed globally by investment banking affiliates of Bank of America Corporation (“Investment Banking Affiliates”), including, in the United States, BofA Securities, Inc. and Merrill Lynch Professional Clearing Corp., both of which are registered broker-dealers and Members of SIPC, and, in other jurisdictions, by locally registered entities. BofA Securities, Inc. and Merrill Lynch Professional Clearing Corp. are registered as futures commission merchants with the CFTC and are members of the NFA. Investment products offered by Investment Banking Affiliates: Are Not FDIC Insured • May Lose Value • Are Not Bank Guaranteed. ©2020 Bank of America Corporation. 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