We’ve been thinking a lot about job descriptions here at HRSentry®, having recently launching a new product called Job Descriptions Made Simple which helps users quickly assemble job descriptions that are ADA-compliant. Job descriptions aren’t legally required and, as writing them sometimes feels daunting, you may be tempted to avoid having them or to not update the ones you do have. But I would argue that job descriptions are helpful for myriad reasons and provide important legal protection for your organization.
Why have job descriptions? They serve as a communication tool between the employer and employees so there’s mutual understanding about the expectations and responsibilities of the position. They provide a useful reference for performance management and as grounds for termination if an employee cannot or will not meet the written duties and expectations of the job. Job descriptions justify Exempt or Nonexempt categorizations as required by the FLSA and they can protect an organization from employment claims brought under the ADA or Title VII. The key is to do them well.
Be thoughtful about making sure all the “essential duties” of the position are documented. The EEOC describes these as the tasks which are fundamental to the position and, if removed, would fundamentally change the job. You can also think of essential duties as the reason the job exists. If you are creating a description of a position that isn’t new but already exists, get input from the person doing the job as that person knows the job well and will appreciate being consulted.
When culling the essential duties in a job description, focus on what needs doing, not on how it’s done. Here’s an example: don’t say, “lift up to 50 lbs. equipment” if what is actually required is that the equipment be moved. The function to be accomplished is transporting the equipment so that’s what you should say to make sure you don’t exclude individuals who might need a reasonable accommodation such as using a dolly.
You should also pay attention to bona-fide occupational qualifications (BFOQ) to make sure the job description does not violate Title VII or other laws related to protected to class protection, such as those based on race, gender, age, national origin or pregnancy status. So, for instance, don’t specify that the job occupant needs to male or female unless you can prove that it’s really required to this this job. For instance, a counselor of a support group for teenage girls discussing sexual issues needs to be a woman if the girls are to feel comfortable opening up. So being female in this case is a BFOQ.
As mentioned job descriptions are not legally required but, if you have them, they are treated as legal documents and they must be kept for at least two years. So be thoughtful and careful about creating them and consider using Job Descriptions Made Simple to ensure they work well for you!
The Americans with Disabilities Amendments Act (ADAAA) has been with us for a couple of years but the final interpretation of the expanded coverage under the Amendments Act is just recently in. The ADA precludes discrimination in hiring and employment decisions. So what does the final interpretation mean for you as an employer?
The main thing is that a lot more people than ever before will qualify for protection under the Act. This makes it vital to consider possible ADA-related effects before taking any employment action. Coverage now includes an array of impairments including those that are episodic such as cancer or diabetes. Also included are mental illnesses and learning disabilities. As diagnoses of some of these conditions increase, the number of applicants and staff you encounter who are protected by the Act will likewise continue to grow.
There are three categories of covered individuals:
1. Someone who is disabled
2. Someone who has a record of being disabled
3. Someone who is regarded as being disabled.
An individual who falls under one of the first two categories may request “reasonable accommodation” and you should comply if the situation warrants and the accommodation does not create an “undue hardship” for your organization. Remember, however, that the person must be able to perform the essential functions of the position with such accommodation. You are under no obligation to employ someone who can’t do the job. Perform a thorough analysis and make sure all job descriptions are complete and accurate.
Be mindful that an individual who claims to fall under the “regarded as” category may also bring a claim of discrimination. Therefore, every employment action should be viewed in light of the ADA. Make ADA training mandatory for every supervisor and manager in your organization. Be sure they understand that more employees and applicants than ever before will be covered and that an ADA lens needs to be used to view employment situations and actions.
It looks as though the Supreme Court justices are unconvinced that the largest discrimination case in history, brought by several women against Wal-Mart, should have been certified as a class action suit by a lower court. That certification by the 9th Circuit court includes every woman employed for any period of time during the past decade at any of Wal-Mart’s 3400 stores. The upshot thus far seems to be that the argument that the claims are not similar enough to be typical is prevailing and that the cases should have instead been brought in separate trials. Law professor, Kent Greenfield, writes in the Huffington Post as to what the justices, Kennedy in particular, may be missing about the power of corporate culture. For more information click here to visit the Huffington Post web site.
Whatever the outcome, Wal-mart won’t be the last organization fending off allegations of a pervasive culture of discrimination. Six women filed suit on March 21 against Bayer Corporation citing discrimination based on gender, taking leave protected by federal and state laws, as well as pregnancy status and that of primary-caregiving mothers. The six claim to represent hundreds of other women and their allegations, if true, seem overtly egregious. For more details on the Bayer case, see the Society for Human Resources online news article by clicking here.
Of course the best way to avoid getting into a similar situation is to train, train, train your managers on these and all your policies and practices: sexual harassment and other harassment awareness, proper interviewing, FMLA, and all of your non-discrimination policies and practices. As with all important communications, the message and culture of non-discrimination comes from the top so top executive support and messaging are key. For more information or help addressing these issues, HRSentry.com provides up-to-date links to laws and legal information, best practice information, sample policies and kits.
The process of hiring a new employee is time consuming, and can be overwhelming when you are swamped by large numbers of applicants. Finding the best applicant for the position is the number one priority, and companies may overlook the importance of sending out rejection letters.
According to Tim Gould “…Survey after survey indicates there’s one thing prospective workers hate about the application process—the fact that they never hear from a company after an interview.” Although it is clear that the applicant didn’t receive the job when they never hear from a company after an interview, it is still important for the company to send a rejection letter. Not sending a rejection letter says to the applicant that the company “doesn’t even care enough about people to send a courtesy letter.” This is not the type of public image that most companies work to build.
One reason many companies may overlook sending rejection letters, is that they don’t know what to put in and what to leave out. Here are some tips to help make writing rejection letters an easier task:
Don’t put in the “we’ll keep your resume on file” statement. Although this is standard in most rejection letters, such a promise could potentially create legal problems. Some applicants may take this to mean that they will be considered for all future openings, and you don’t want to have to re-interview rejected candidates every time a new position opens up.
Don’t send a form letter. Although it’s easy to send out a simple form letter to everyone who didn’t make the cut, sending an impersonal letter can be just as insulting as getting no letter at all.
Don’t get into specifics. Avoid sharing any information about the person who get the position, and there is no reason to explain in detail why the applicant wasn’t chosen for the position. Sharing this type of information could lead the rejected applicant to decide their qualifications were better than the chosen candidate’s and possibly lead them to conclude they weren’t chosen for some other factor, such as discrimination.
For more information on writing rejection letters, HRMade Simple Users can log in and search “Rejection Letters” for more information.
During an interview have you ever asked a potential employee how old they were? Or if they were married? Did you know that both of these questions are illegal to ask a potential employee during an interview? Questions like these that may seem innocent and can be considered typical “getting to know you” type of questions are actually illegal to ask during an interview. It is important to avoid asking these types of questions to potential employees because your organization could become tangled up in a discriminatory hiring practices legal mess or lawsuit.
Questions asked during an interview should focus on the qualifications for the job. Most human resources personnel are aware of qhat constitues an illegal or legal question, but others involved in the interview process may not be. Here are some example of legal and illegal questions:
Legal Questions include:
What education do you have?
What experience qualifies you for this job?
Do you have specific licenses or certifications that pertain to this job?
Are you willing to travel?
Do you have a legal right to work in the United States?
Are you available for overtime?
Illegal Questions include:
What is your age or date of birth?
What is your sexual orientation?
What church do you attend?
What is your national origin?
What is your marital status?
In addition to these questions, there are both more legal and illegal questions that can come up during the interview process. Every recruiter, hiring manager, executive, and department manager must realize that asking the wrong interview questions or making improper inquiries can lead to discrimination or wrongful-discharge lawsuits, and these suits can be won or lost based on statements made during the interview process. Be aware of what the potential candidates are being asked during the interview process, and make sure everyone involved in the process is aware of what types of questions can and can not be asked.
For more information, HR Made Simple users should log in and search “interviews.”
