Post on 27-Jun-2020
Creating and Maintaining Legally Compliant
Job Descriptions: Avoiding Missteps Under
the FLSA, ADA, FMLA and Other Laws
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THURSDAY, MAY 25, 2017
Presenting a live 90-minute webinar with interactive Q&A
Joon Hwang, Esq., Littler Mendelson, Tysons Corner, Va.
Brandon R. Mita, Esq., Littler Mendelson, Washington, D.C.
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FOR LIVE EVENT ONLY
Creating and Maintaining Legally
Compliant Job Descriptions:
Avoiding Missteps Under the FLSA,
ADA, FMLA and Other Laws
Presented by:
Joon Hwang and Brandon Mita
Littler Mendelson, P.C.
May 25, 2017
Joon Hwang Littler Mendelson, P.C. Tysons Corner Office
703-286-3136 JHwang@littler.com
Presented by:
Brandon R. Mita Littler Mendelson, P.C.
Washington, D.C. Office 202-789-3407
BMita@littler.com
5
Overview of Presentation
• Why Have a Job Description?
• Fair Labor Standards Act (“FLSA”)
Considerations
• Americans with Disabilities Act (“ADA”) Considerations
• Family and Medical Leave Act (“FMLA”) Considerations
• Steps to Creating Accurate and Defensible Job
Descriptions
• Best Practices for Developing Job Descriptions
6
Why Have a Job Description?
7
Why Have a Job Description?
• Organizational Planning
– Outlines the expectations and requirements for a job so that it is clear the employer’s expectations
– Provides information for the employee and his or her manager in terms of what tasks, duties, and functions are assigned
– Collectively, directs where the functions of the organization will be performed
8
Why Have a Job Description?
• Recruiting
– Allows Hiring Managers and HR professionals to
determine a fit between applicants and job
– Aids recruiters in conducting pre-screening of
applicants and in the creation of communication
materials used to promote the open position and
generate job candidates
9
Why Have a Job Description?
• Orientation and Training
– Once hired, job descriptions can provide the basis for
training about what the job entails
– Managers can assess the knowledge, skills and
abilities the candidate brings to the job, identify areas
where additional training may be needed and develop
a plan to close the gaps to provide the necessary
background, information, and skills training for the job
holder
10
Why Have a Job Description?
• Compensation
– External Effects: Market-based compensation are
common and job descriptions are used to compare
the duties of an employer’s positions to similar
positions with other employers so that pay levels may
be established
– Internal Effects: Develops equity within an
organization (e.g., requirements for higher education
may result in higher pay)
11
Why Have a Job Description?
• Performance Management and Appraisal
– Used to determine whether an employee is performing their jobs to the employer’s expectation
– In litigation, job descriptions may be used to show whether employees knew what their job duties were and job expectations
– If disciplinary measures are taken, an organization may need to point to the job description as evidence that the employee was provided the employer’s expectations
12
Timing
• Job descriptions
should be created and
reviewed…
– When new positions are
added
– When the requirements of
the position changes
significantly
– When turnover occurs
– On a regularly scheduled
basis that may correspond
with the performance
evaluation process
13
FLSA Considerations
14
FLSA Considerations
• Employers must pay employees:
– At the least the minimum wage for all hours worked
– Overtime pay at 1.5 times the employee’s regular rate of pay for all hours worked over 40 in a workweek
• For job descriptions, FLSA relates to the determination of whether or not the employee is entitled to receive overtime pay
• Unless the employee is classified as exempt.
• FLSA does not preempt state law.
15
Why this is important!
FLSA Lawsuits – 8,308 in 2016
1,967
4,039
5,644
7,550 7,708 8,066 8,954
8,308
0
2000
4000
6000
8000
10000
2001 2005 2009 2012 2013 2014 2015 2016
Number of FLSA Filings
Data provided by Law360.com
16
FLSA Considerations
• Job descriptions are an
important element of
supporting a position’s
classification as exempt.
• Several elements of the job
description that examiners will
review:
– Job Title
– Job Requirements
– Job Duties
17
FLSA Considerations
• Exemptions include:
– Executive
– Administrative
– Professional
– Computer
– Many Others
• Highly-Compensated
• Recreational
• Motor Carrier
• The list goes on and on …
18
Administrative Exemption
• Describe primary duty
• Discuss employee’s involvement with: – Business planning or budgeting / project management
– Management of personnel issues, overtime, wage budgets, schedules, applications, discipline
– Management of vendors, contractors, third parties
– Negotiating contracts, settling claims, or compliance
– Clarify: production or administrative
• Describe any special area of expertise (e.g., accounting, tax, public relations, etc.)
19
Administrative Exemption
• Provide specific examples of the types of
decisions that the employee is authorized to
make without further review and those for which
the employee makes recommendations
• Include the amounts of the company’s money
which the employee is authorized to spend
• Describe how closely the employee is
supervised
20
Administrative Exemption
• List any materials establishing operational practices
and procedures that the employee must follow, and
clarify whether discretion to deviate
• List any specialized computer systems that the
employee uses to perform the job
• Acknowledge time spent performing physical
mechanical, repetitive, recurrent or routine work
(“may on occasion...”)
• Establish primary duty includes discretion and
judgment with respect to matters of significance
21
Executive Exemption
• Define the business unit the employee manages
• Describe management responsibilities
• Identify direct reports (positions)
• Describe ways in which the employee directs the work of those reports (e.g., setting schedules, ensuring quality, resolving grievances)
• Describe involvement in hiring, promotion, evaluating performance, setting compensation, discipline, termination (entire supervisor life cycle)
22
Learned Professional Exemption
• Include the advanced degree required for the position
• Describe any licensing or certification requirements
• Describe job duties that require the use of the advanced
knowledge
• List any materials establishing operational practices and
procedures that the employee must follow
• List any specialized computer systems that the employee
uses to perform the job
• Include the percentage of the employee’s time spent
performing mechanical, repetitive, recurrent or routine work
23
Creative Professional Exemption
• Identify the artistic field
• Provide specific examples of original content created by the employee
• Describe any specifications or standards which the employee is required to follow
• Provide details regarding any computer-assisted design program used by the employee
• Describe any process for approval or rejection of the employee’s work
24
Computer Exemption
• List the programs or systems on which the employee works
• Provide examples of job duties involving the development or
modification of system or programs, including indicating
whether the employee writes code
• Describe whether and how the employee interacts with end
users of the computer systems or programs
• Include the percentage of time the employee spends on
routine data entry or running pre-programmed reports
• Include the percentage of time the employee spends repairing
or troubleshooting hardware
25
State Laws
• Some states have higher minimum salary
requirements than the FLSA
• Some states do not recognize all of the
exemptions recognized under the FLSA
• Many states have different duties requirements
than the FLSA
26
ADA Considerations
27
ADA Considerations
• ADA applies to employers with 15 or more employees
– Beware of state law equivalents that may apply to employers
with less than 15 employees (e.g. Virginia Human Rights Act)
• ADA is designed to protect employees with disabilities
from losing their ability to find and keep gainful
employment.
• Employers must not discriminate against employees on
the basis of disability and are required to make
reasonable accommodations for employees with
disabilities to allow them to perform the essential
functions of a job. 28
ADA Considerations
• In considering whether an
accommodation will be necessary,
the job description will be reviewed to
determine the requirements of the job
and its essential functions.
• Employers need not eliminate
essential job functions as an
accommodation to a disabled
individual.
• Accurate and up-to-date job
descriptions are critical to defending
claims of disability discrimination.
29
ADA Considerations
• ADA Implications
– Job Title: Provides a reflection of the job and what it
entails and can create an immediate impression of
the position.
– Job Requirements: Provides an indication of the
type and level of performance required in the position
and can be used as a gauge for determining whether
an individual can effectively meet the requirements of
the position with or without an accommodation.
30
Essential
Functions
Non-essential Functions
Physical Requirements
Reporting Responsibilities
ADA Considerations
31
What is an Essential Function?
• A job function is essential if the job exists to perform that function.
• Some factors to consider:
– How much time does the employee spend performing the function?
– Can the duties be reassigned to another employee without changing the fundamental nature of the job?
– What has been the actual experience of others in the position and prior employees (i.e., have other others been excused from performing the function)?"
– Are there limited people available to perform that function?
– Is the function listed on the Job Description?
• Even if on the job description, a job function generally is not essential if the employee never or rarely performs it.
32
What is an Essential Function?
• Is staying awake an essential function?
– Yes – in most cases
• Is arriving to work on time an essential function?
– Depends. Must look at the nature of the job (e.g., manufacturing less flexible than office)
• Is good attendance an essential function?
– Depends. While regular and consistent attendance is usually an essential function, the attendance may not have to be at their place of work (i.e., working from home accommodation)
33
FMLA Considerations
34
FMLA Considerations Who is Eligible for FMLA?
35
• Experience a qualifying reason for leave
• Work for a covered employer (50+ employees
total)
• Have accumulated 12 months of service
– Breaks in service may count
– Non-FMLA leave ripening into FMLA leave
• Worked 1,250 hours in last 12 months
– Presumed met if no time records
• Work at a jobsite with 50+ employees within a
75-mile radius
*ineligibility for FMLA may not = ineligibility for medical leave
FMLA Considerations Reasons for Leave
36
• Birth or placement of a child (12
weeks in a single 12-month
period)
• To care for a spouse, parent or
child with a serious health
condition (12 weeks)
• The employee’s own serious
health condition (12 weeks)
• A qualifying exigency (12 weeks)
• To care for a covered
servicemember (26 weeks)
FMLA Considerations
• Employers can require an
employee returning from FMLA
leave to receive a
comprehensive fitness for duty
evaluation.
• To ensure a comprehensive
evaluation employers should:
– Include current and accurate job
description with notice
– Require treating physician to
evaluate employee using the job
description.
37
FMLA Considerations
Physical Demands:
• Standing 20%
• Sitting 70%
• Walking 10%
• Stooping - occasional
• Lifting - 10 to 15 lbs. (2 to 5
times per day)
• Computer work - 75%
• Reading - 25%
38
Other Legal Issues
• Background Checks
– Criminal History
– Credit Checks
• Discriminatory
language
39
Steps to Creating Accurate and Defensible Job Descriptions
40
Preparing Job Descriptions
41
Preparing Job Descriptions
STEP 1:
• Complete a Job Analysis
– Purpose;
– Job Setting;
– Workstation; and
– Activities.
– Involve supervisors and employees and observe actual working conditions
42
Preparing Job Descriptions
43
Preparing Job Descriptions
STEP 2:
• Record the Basics
– Job Title, Duties and
Responsibilities;
– Job Functions, Essential and
Marginal Duties; and
– Special Working Conditions,
etc.
44
Preparing Job Descriptions
• Overall Purpose:
– Coordinates day-to-day
human resources
functions requiring
general knowledge of
federal and state
employment laws and
regulations
45
Preparing Job Descriptions
• Essential Duties
– Report weekly payroll to payroll processing company
– Place employment advertisements and interview
candidates for vacant positions
– Record personnel information into human resources
database program
– Attend weekly budget reporting meeting
• Physical Demands
– Standing 20%
– Sitting 70%
– Walking 10%
46
Preparing Job Descriptions
Other Duties:
• Perform monthly safety
inspections in plant and
office
• Plan company events
and employee
recognition program
47
Preparing Job Descriptions
48
Preparing Job Descriptions
STEP 3:
• Detail Qualifications
– Education;
– Training; and
– Experience
49
Preparing Job Descriptions
• Education and/or Experience:
– BA or BS + 1 to 3 years general HR experience
• Knowledge, Skills, and General Abilities:
– MS Word, Excel, Interviewing, General Knowledge of
federal and California employment laws and
regulations
• Mental Abilities:
– Ability to prioritize; detail oriented and multi-task
functioning
50
Preparing Job Descriptions
• Certificates, Licenses,
• Registrations:
– PHR or equivalent certification
• Other Special Skills and Abilities:
– Typing
– Graphic Design
• Employee orientation and safety
training
51
Preparing Job Descriptions
52
Preparing Job Descriptions
STEP 4:
• Maintain Consistency
– Consistent Language;
– Preferred Action Words;
and
– Ensure equitable
comparisons of content
across jobs
53
Best Practices for Developing Job Descriptions
54
Best Practices For Developing Job
Descriptions
• Base job description on a job analysis that involves the systematic collection, documentation, and analysis of the functions of the job. The job analysis could take the form of questionnaires, interviews, or direct observation
• Establish a regular process for reviewing and updating job descriptions (e.g. during annual review process
• Focus on outlining the expectations and requirements for a job so that the employer’s expectations are clear to the employee
55
Best Practices For Developing Job
Descriptions
• Use language that is precise and specific, and
designed to clearly and accurately convey the
requirements of the job
• Use action verbs in the job description to
describe to clearly and accurately convey the
requirements of the job
56
Best Practices For Developing Job
Descriptions
• Job title and summary of the position are
important areas of the overall job description
that send an immediate message to any
reviewer which can become critical when
dealing with FLSA, ADA, and FMLA issues
• Consider a disclaimer:
– “This job description is designed to provide a general
overview of the requirements of the job and does not
entail a comprehensive listing of all activities, duties,
or responsibilities that will be required in this position.”
57
Creating and Maintaining Legally Compliant Job Descriptions: Avoiding
Missteps Under the FLSA, ADA, FMLA and Other Laws
Joon Hwang Littler Mendelson, P.C. Tysons Corner Office
703-286-3136 JHwang@littler.com
Brandon R. Mita Littler Mendelson, P.C.
Washington, D.C. Office 202-789-3407
BMita@littler.com 58