Job descriptions or position descriptions? Whatever the name, they’re not legally required, so why should your organization even bother to create them? Isn’t that a lot of work for something that will languish in a drawer somewhere? Well, yes, it does take some effort but it’s effort well spent that will save time later and enrich your employment processes. There are multiple reasons to create job descriptions and multiple reasons they should never languish in a drawer, not even an electronic one.
Job descriptions serve important communication purposes and provide a strong foundation for key legal compliance. Let’s take a more detailed look at the several functions of this invaluable employer tool:
Setting Out Expectations
Establish proper expectations from the start through job descriptions. When recruiting, employment ads or social media posts are brief so you can point candidates to your web site and publish the full description there. Some prefer to provide a hard copy when candidates come in to interview but candidates often request a copy before interviewing or even before applying so why not just put it out there? The job description conveys precisely what the opening entails and other relevant information such as to whom it reports and the education level, skills and experience required. Unqualified candidates, or those scared off by hard work, may self-select themselves out of the process based on the description and that saves you valuable time. Having a clearer understanding of the job also helps candidates ask better, more pointed questions. Once hired, a new employee is better armed to understand what is expected of him or her from the outset.
Compliance with the Fair Labor Standards Act (FLSA)
A job description is key in determining and documenting whether a position is considered exempt or non-exempt under the FLSA. In addition to salary considerations, the U.S. Department of Labor (DOL) sets out duties tests for its various exemptions from overtime and minimum pay requirements: executive, administrative, professional, outside salesperson, and computer-related. If a position is deemed exempt, the job duties and functions laid out in the description offer legal justification. It’s a great idea to include the exempt/nonexempt status right in the job description along with which exemption category the job fits into. This will provide enormous help in the event of an investigation. I just attended a presentation by a federal investigator who was asked how he determines whether a position is exempt or nonexempt. The first place he looks? The job description.
Compliance with the Americans with Disabilities Act (ADA) and Amendments Act (ADAAA)
Job descriptions outline the essential functions of the position which are crucial to understand in order to comply with the ADA and ADAAA. Especially since the passage of the latter, there is much less emphasis on whether or not an individual has a disability. The category of what constitutes a disability is now so broad that the focus is more on this question: Can the employee (or applicant) perform the essential functions of the job with or without reasonable accommodation? So, when you provide job descriptions to applicants, you may not lawfully ask if they have a disability; but you may lawfully ask if they can perform the essential functions of the job with or without reasonable accommodation. And the job description is key in defining those functions. You don’t have to hire, nor retain, an individual who cannot perform the essential functions. Of course, it is incumbent upon you to provide any necessary but reasonable accommodation to help the person do so. But you do not have to provide any accommodation the person requests as it may not be reasonable.
Employees’ Return to Work
The essential functions of the job come into play when an employee is returning from work after serious illness or injury under the Family and Medical Leave Act, short- or long-term disability leave or workers’ compensation leave. The employee’s release by a physician as able to perform the job is of course based on the job description. And the job description is the perfect place to start when creating a temporary “modified duty” position to get the employee back to work after a workers’ comp injury.
Performance Evaluation
Finally, a good job description serves a key role, along with your goals and mission, in your performance evaluation system. In order to know how well a person performs, both employer and employee need a strong understanding what the job contributes. After all, you can’t judge a person on a responsibility they didn’t know they had. The job description serves as a guide and road map. The goals for each employee roll into the goals of the organization. Of course, jobs and employees evolve. Every six months or so, employees and supervisors should re-visit job descriptions and make appropriate updates. Yes, get the employee’s input. No one understands the job better than they do. It’s one more communication opportunity so employees feel consulted and involved with their job and how it fits into the goals of the organization.
Here are the components of job descriptions:
Basic Information–Title; Department; Supervisor; Exempt vs. Nonexempt FLSA Status; if Exempt, which exemption applies
Job Purpose–The main role of this position; the reason it exists
Knowledge, Skills and Abilities Required or Helpful to Perform the Role
a. Abilities refer to competence due to one’s training, skill or other qualifications
b. Knowledge is factual or procedural information;
c. Skills refer to mental, verbal or manual acuity;
Tools and Technology used in performing this role
Physical and Mental demands, e.g. physical demands such as moving heavy objects or on-the-job travel; mental demands such as handling pressure and meeting deadlines
Working Conditions—what is the environment like? Items such as lighting, temperature, noise level, office setting, warehouse setting, outdoors.
Approvals by the manager and HR; signature of employee to acknowledge understanding.
Finally, follow these six tips to introduce job descriptions successfully at your organization:
Have job descriptions for every position, not just a few, so everyone understands the importance of job descriptions and so you are consistent with all levels and roles;
Solicit employee input or even have employees write the first draft;
Update completed job descriptions periodically so they remain current and useful;
Refer to the contents of job descriptions in your performance evaluation process;
Use ADA-compliant wording; for example, instead of saying “lift 50 lb. boxes,” say “move 50 lb. boxes” or instead of “sitting or standing ” say “remaining in a stationary position” to avoid excluding someone with a disability who could perform the function with equipment or other reasonable accommodation.
Legal claims of retaliation against employers have exploded in recent years. An Equal Employment Opportunity Commission (EEOC) chart of statistics from 1997 through 2010, shows that in the most recent year the largest percentage of claims, 36.3% out of almost 100,000 total handled by the EEOC, were in the area of retaliation. Claims of retaliation have increased each year shown and, in 2010, the latest year available, exceeded even those of race which had been the largest category for years. Clearly important and becoming even more so, what exactly is retaliation?
In layman’s terms, retaliation is payback, the act of getting back at someone, harming or punishing the person because of something they’ve done. In the employment law sense, it’s when an adverse action is taken by an employer against an employee for having taken an action that is protected by law; the result is considered retaliation and it is unlawful.
Adverse action by an employer can take many forms: termination, demotion, discipline, salary reduction, negative performance evaluation, change in job assignment, change in shift assignment and can even consist of hostile behavior toward the person by the supervisor or someone else. Obviously, many of these actions may be perfectly legal and within an employer’s rights under proper circumstances. You are free to engage in adverse actions that are brought about by nondiscriminatory reasons even if the employee happened to have filed a claim against you or was out on protected leave. But before embarking on any adverse action, carefully think things through, ensure that HR is involved and be certain there is proper documentation that shows your action was taken lawfully. If you are unsure, it’s well worth it to get sound legal advice.
Here’s an example of a situation you might encounter: when someone is having performance issues, don’t procrastinate; document the problems right away. If the person then requests and becomes eligible for FMLA leave, you want it to be crystal clear that performance issues were already being addressed in advance and are completely separate from the request for leave. If discipline results from the performance issues after the person returns from leave, be sure you have excellent documentation of the lawful reasons for taking disciplinary action. You always want to consider your documentation in terms of how a jury might view it. Timing of and clear communication to the employee about any performance issue or other lawful reason are vital.
Don’t forget that whether or not retaliation occurred may be in the eye of the beholder. Consider whether any adverse action you take may be viewed by the employee as punishment for something they have done that has legal protection. Treating employees humanely and respectfully, even when initiating a disciplinary action, is vital. Not only is it the right thing to do, but employees who are treated disrespectfully can become angry. And angry individuals are much more likely to file a lawsuit, baseless or otherwise, against you.
In addition to taking FMLA leave, what other common employee activities are protected by law? Here are some important examples:
Requesting accommodation under the Americans with Disabilities Act;
Bringing a claim of discrimination;
Taking protected leave under Uniformed Service Employment and Reemployment Rights Act;
Making a complaint of harassment or other workplace violation (such as a safety infraction or a wage-hour law violation;)
Posting comments on social media that qualify as “protected concerted activity;”
Participating in a government agency’s investigation of a claim brought by another employee.
It’s pretty clear that retaliation should be on every employer’s radar screen and it’s key that all of your managers and supervisors be trained to understand it, to understand protected statuses and activities, and to make sure discrimination in general and retaliation in particular doesn’t happen. After all, supervisors are on the front lines where they could make stray comments that might be construed by an employee to be retaliatory. Even unfounded legal claims are costly in terms of time, effort and attorney fees so you want to avoid even the appearance of retaliation. Further, it is ironic that even when an initial claim of a workplace violation is found to be baseless, the employee may still be able to prove that retaliation occurred as a result of his or her making that initial, baseless claim!
And there’s yet another caveat–they say the road to hell is paved with good intentions! Here’s an illustration of good intentions gone bad: Let’s say an employee alleges sexual harassment by her supervisor. In response, you switch the employee’s shift from day to evening so she doesn’t have to work with that supervisor. Guess what? Even though you intended no harm and thought you were trying to help her, if the employee prefers the day shift, she has a claim that you retaliated due to her claim of sexual harassment. In response to a claim of sexual harassment or any other forms of discrimination, don’t focus only the victim and ignore the alleged perpetrator as shown in the example. Conduct a full investigation and, if such discrimination is indeed happening, put a stop to it. And document all of your actions along the way.
So what can you do to prevent claims of retaliation in your workplace? Here are some strategic steps:
Establish a policy. Spell out what retaliation is and make it clear that you will not tolerate retaliation from managers or other employees. Tell employees what steps to take if they feel they are being retaliated against.
Train your managers. Make sure managers and supervisors understand what retaliation is and what your policy says. Make sure they know to always include HR when they wish to recommend an adverse action against an employee.
Respond to all claims and complaints. If a claim of a workplace violation or other workplace complaint is made, communicate with the employee. Explain that you take the claim seriously and won’t tolerate retaliation from anyone in the company.
Keep any claims you receive confidential. Confidentiality is respectful to the employee but there’s another reason: the fewer who know about a claim, the lower the chances that someone will retaliate against that employee. Naturally, when you investigate an employee’s allegation, you will have to tell some people about it but make sure it’s only those who absolutely need to know. And when you tell them, explain what retaliation is and that it won’t be tolerated.
Document, document, document. Take notes of everything you do to prevent retaliation. If an adverse action against an employee is justified, even when an employee has engaged in a protected activity, make sure it’s clear that your action was not in response to the employee’s protected activity or status and was taken for other, lawful reasons (such as poor performance or other job-related reasons) that are well communicated and well documented.
Treat all employees with respect, even when taking an adverse action.
Employment law can seem complex and it may sometimes seem that the deck is stacked against employers. But if you are meticulous, think things through, and document all adverse action properly, you should be able to take adverse actions when appropriate and protect your organization from claims of retaliation and all other forms of discrimination.
If you were getting ready to download and post the employee rights poster next month, you can wait a while longer. The National Labor Relations Board (NLRB) has agreed to postpone the effective date until April 30, 2012 at the request of a federal court in Washington, DC which is hearing a related case. This latest ruling from the NLRB states that it has determined that the postponement will facilitate the resolution of the legal challenges that have been filed with respect to the rule.
Unless legal challenges dictate otherwise, most private sector employers will be required to post the 11-by-17-inch employee rights notice by the new April 30th deadline. The notice may be downloaded for free from the NLRB through its website which provides additional information on posting requirements as well as on NLRB jurisdiction.
Specifically excluded from NLRB jurisdiction are:
federal, state and local governments, including public schools, libraries, and parks, Federal Reserve banks, and wholly-owned government corporations;
Employers who employ only agricultural laborers, those engaged in farming operations that cultivate or harvest agricultural commodities or prepare commodities for delivery;
Employers subject to the Railway Labor Act, such as interstate railroads and airlines.
Colchester, VT – HRSentry, has announced the release of their new mobile app, “HR Audit”. This mobile HR Audit is available for free on both Apple and Android devices. “This new app provides an essential assessment tool for managers to determine if their organizations are in compliance with federal employment laws and best practices,” says Dean Haller, HRSentry’s CEO, noting that “this 60-question process quickly helps identify those areas that may pose a significant risk of fines or lawsuits.”
To download HRSentry’s “HR Audit” visit the Apple App Store or Android Market and search for “HR Audit”. In addition to the HR Audit, HRSentry’s first app “HR At Your Fingertips” for the iPhone and iPad, continues to rank as one of the top business apps in the Apple store.
About HRSentry:
Since being founded in 2003, HRSentry’s mission has been to create, deliver, and support services and training that empower the organization to be self-sufficient in administration of its Human Resource policies, practices, and procedures. HRSentry’s services enable the user to access Human Resource forms, policies, and procedures; link to federal and state laws, regulations, and resources and expand their knowledge of HR through state-of-the-art training mediums. For more information visit www.hrsentry.com.
Previously, we discussed the importance of classifying your workers properly, whether independent contractors or employees. Greater attention is being paid by the IRS, as well as a number of states, as to whether employers are misclassifying their workers; at the same time, the IRS has created the Voluntary Classification Settlement Program (VCSP) to allow employers to come into compliance relatively painlessly. Here’s the gist of how it works:
Under the VCSP, an employer that wants to reclassify one or more workers as employees going forward must complete an application form (Form 8952) 60 days in advance of the date it wishes to make the change. Note that, to be eligible, the employer must have consistently treated the workers in question as non-employees and must have filed all required Forms 1099 for the workers for the previous three years. Additionally, the employer must not be under current IRS audit by the IRS nor can it be under audit by the U.S. Department of Labor (DOL) or a state agency regarding the classification of such workers.
If accepted into the program, the employer:
will pay 10% of the amount of employment taxes calculated under the reduced rates of section 3509(a) of the Internal Revenue Code (IRC) for the compensation that was paid to the worker(s) for the most recent tax year;
will not be liable for any interest and penalties on the payment;
will not be audited for employment tax purposes for prior years with respect to the worker classification of the worker(s.)
Note that the IRS indicates that completing Form 8952 does not trigger an audit even if you are not accepted into the VCSP. You might, of course, be audited for other reasons but should not fear that completing the application will increase your chances. (See the IRS web site for additional FAQs.) Who needs the worry of failing an IRS or other worker classification audit? The VCSP is an excellent opportunity for employers wishing to come into compliance going forward and allay those fears.
