Creating and Maintaining Legally Compliant Job...

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Creating and Maintaining Legally Compliant Job Descriptions: Avoiding Missteps Under the FLSA, ADA, FMLA and Other Laws Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. 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.

Transcript of Creating and Maintaining Legally Compliant Job...

Page 1: Creating and Maintaining Legally Compliant Job ...media.straffordpub.com/products/creating-and-maintaining-legally-compliant-job...May 25, 2017  · –In litigation, job descriptions

Creating and Maintaining Legally Compliant

Job Descriptions: Avoiding Missteps Under

the FLSA, ADA, FMLA and Other Laws

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

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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Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your

participation in this webinar by completing and submitting the Attendance

Affirmation/Evaluation after the webinar.

A link to the Attendance Affirmation/Evaluation will be in the thank you email

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For additional information about continuing education, call us at 1-800-926-7926

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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

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Joon Hwang Littler Mendelson, P.C. Tysons Corner Office

703-286-3136 [email protected]

Presented by:

Brandon R. Mita Littler Mendelson, P.C.

Washington, D.C. Office 202-789-3407

[email protected]

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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

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Why Have a Job Description?

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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

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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

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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

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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)

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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

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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

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FLSA Considerations

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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.

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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

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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

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FLSA Considerations

• Exemptions include:

– Executive

– Administrative

– Professional

– Computer

– Many Others

• Highly-Compensated

• Recreational

• Motor Carrier

• The list goes on and on …

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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.)

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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

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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

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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)

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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

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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

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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

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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

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ADA Considerations

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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

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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.

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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.

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Essential

Functions

Non-essential Functions

Physical Requirements

Reporting Responsibilities

ADA Considerations

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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.

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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)

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FMLA Considerations

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FMLA Considerations Who is Eligible for FMLA?

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• 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

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FMLA Considerations Reasons for Leave

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• 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)

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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.

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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%

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Other Legal Issues

• Background Checks

– Criminal History

– Credit Checks

• Discriminatory

language

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Steps to Creating Accurate and Defensible Job Descriptions

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Preparing Job Descriptions

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Preparing Job Descriptions

STEP 1:

• Complete a Job Analysis

– Purpose;

– Job Setting;

– Workstation; and

– Activities.

– Involve supervisors and employees and observe actual working conditions

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Preparing Job Descriptions

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Preparing Job Descriptions

STEP 2:

• Record the Basics

– Job Title, Duties and

Responsibilities;

– Job Functions, Essential and

Marginal Duties; and

– Special Working Conditions,

etc.

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Preparing Job Descriptions

• Overall Purpose:

– Coordinates day-to-day

human resources

functions requiring

general knowledge of

federal and state

employment laws and

regulations

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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%

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Preparing Job Descriptions

Other Duties:

• Perform monthly safety

inspections in plant and

office

• Plan company events

and employee

recognition program

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Preparing Job Descriptions

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Preparing Job Descriptions

STEP 3:

• Detail Qualifications

– Education;

– Training; and

– Experience

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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

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Preparing Job Descriptions

• Certificates, Licenses,

• Registrations:

– PHR or equivalent certification

• Other Special Skills and Abilities:

– Typing

– Graphic Design

• Employee orientation and safety

training

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Preparing Job Descriptions

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Preparing Job Descriptions

STEP 4:

• Maintain Consistency

– Consistent Language;

– Preferred Action Words;

and

– Ensure equitable

comparisons of content

across jobs

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Best Practices for Developing Job Descriptions

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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

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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

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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.”

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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 [email protected]

Brandon R. Mita Littler Mendelson, P.C.

Washington, D.C. Office 202-789-3407

[email protected] 58