Pub. 16 2017-2018 Issue 4

N E W J E R S E Y C O A L I T I O N O F A U T O M O T I V E R E T A I L E R S 25 new jersey auto retailer W W W . N J C A R . O R G class or mass action. From the dealer’s viewpoint (and, I believe, the customer’s as well), the availability of such provisions is a good thing. Hopefully 2018 will see more clarity and consistency on this important issue. For now, the previous CFPB mission to thwart consumer arbitra- tions is in tatters. Therefore, dealers who want arbitration clauses with consumers should monitor developments in state and federal law, including relevant court decisions to assure legal compliance. State associations have done an excellent job staying current, and are reliable resources for dealers looking for guidance on arbitra- tion provisions. 12. Workforce Issues and Unionization The Obama era of one-sided, pro-labor, anti-business initiatives is receding, but hardly vanquished. Businesses (and dealers in partic- ular) should be cautious about becoming overconfident in dealing with unionization issues. Caution: A number of states now prohibit asking job candidates for hire about pay history. Hiring practices are under more and more scrutiny today than in the past. In addition, incidents of sexual ha- rassment in theworkplacewill bemet with fierce legal repercussions. A “zero-tolerance” policy for such misconduct is a must. Look for a year of gradual transition to more fairness for employ- ers on basic economic issues, and a more “enlightened” National Labor Relations Board (“NLRB”). State laws vary considerably in employment requirements. Stay current on your jurisdiction’s workplace laws and regulations! 13. Environmental Issues Industrial waste and hazardous material are always subjects for dealers’ attention and vigilance. The overarching environmental philosophy of EPA Chief Scott Pruitt and the Trump admin- istration appears to be to ease those restrictions on industries and businesses that arguably provide nothing meaningful to protect or conserve the environment. A more laissez-faire reg- ulatory policy is likely to make administrative burdens down at the dealership level considerably less onerous. This easing regulatory approach will not cause harm to the environment or foul water or air. Dealers may draw some comfort from the probability that 2018 will see an easing of bureaucratic tasks associated with environmental matters. Nevertheless, dealers must be sticklers in complying with existing requirements, and assure that employees heed best environmental practices. 14. Involuntary Termination Auto franchisors continue to threaten “death penalty” sanctions against their dealers in large numbers, but the delivery of an actual termination notice to a targeted dealer is still a relative rarity. In all instances of franchisor termination threats, a dealer needs to respond in writing – promptly, civilly, accurately and firmly. The response should be factual and professional. It should contest the basis of the threat, and invite the franchisor to discuss all issues further. It is never a sound strategy to ignore such a serious mat- ter. Of course, if you receive a notice of termination, call your experienced franchise attorney immediately. 15. Rights of First Refusal (“ROFRs”) and Buy-Sell Activity For 30 years, I’ve contended that ROFRs limit buy-sell oppor- tunities and tend to drive selling prices down. That is because prospective buyers are wary of wasting time and effort, only to be thwarted by a factory exercising its contractual ROFR. Five states now prohibit ROFRs, and there may be a minor state law trend to follow suit. ROFRs, or even their threat, have become serious impediments to buy-sell activity, especially when franchisors try to “cherry pick” their brand out of multi-brand deals. 16. Consumerism “The consumer is king” is still an applicable maxim, and dealers are well advised to walk the extra mile in directly resolving cus- tomer gripes at the earliest possible time. In dealer vs. consumer disputes, the deck remains heavily stacked in favor of the consumer, LEGAL TRENDS  continued on page 26 Just when we think the threats of hacking and identity theft may be abating somewhat, or that protective software is prevailing, along comes the Equifax disaster, exposing over half of American adults (143,000,000 people) to thievery by sophisticated hackers.