Compliant and Effective Job Descriptions. February 15, 2011 Michael C. Mason Greenberg Traurig, LLP

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1 Compliant and Effective Job Descriptions February 15, 2011 Michael C. Mason Greenberg Traurig, LLP

2 Legal Requirements Only OSHA (40 CFR ) requires job descriptions Otherwise, they are a best practice, if used appropriately and drafted carefully Job postings may be more closely governed by various laws and regulations

3 Job Descriptions A good job description is, first, businessfocused What do you want the employee to do? Against what standards will performance be measured? Second, navigate labor and employment statutes in drafting job descriptions

4 Statutes Under Which Job Descriptions are Pertinent ADA Title VII/ADEA FLSA EO Fair Pay Act NLRA Workers Compensation

5 ADA Qualified individual with a disability able to perform the essential functions of the job with or without reasonable accommodation Essential functions cover them all Physical requirements Environmental circumstances Job duties Frequency, intensity Action verbs

6 Sample Physical Requirements Sitting (a typical requirement for the job of assembler) Sit for extended periods of time without being able to leave the work area Standing (typical for supermarket cashier) Remain on his or her feet in an upright position for continuous periods of time without being able to leave the work area Climbing (typical for millwright) Climb ladders or scaffolding. Work in overhead areas Walking (typical for messenger) Walk considerable distances inside or outside of the facility during the course of his or her work Lifting (typical for construction laborer) Raise or lower objects of up to pounds from one level to another regularly during the shift Pulling and/or Pushing (typical for material handler) Exert force up to pounds to move an object to or away from the employee Carrying (typical for a nurse or a material handler) Carry objects in his or her arms or on the shoulder(s) Grasping (typical for an assembler) Pick up objects with fingers Reaching (typical for a stock picker) Use the hands and arms to reach for objects Stooping and Crouching (typical for a motor vehicle mechanic) Bend forward by bending at the waist or by bending legs and spine Crawling (typical for mechanics, welders, those working in confined spaces) Work in a confined space? To crawl and move about on his or her hands and knees Color Determination (typical for a printing press operator) Use color determination vision (have no color blindness) Near Acuity (typical for electrical assemblers) Have clear vision at a given distance, with or without corrective lens Speaking (typical for a salesperson) Express ideas by the spoken word Listening (typical for a customer service representative) Perceive speech or the nature of sounds in the air Tasting or Smelling (typical for a fragrance tester or food sample tester) Distinguish differences in quality of flavors and/or odors, using tongue and/or nose Typing (customer service/receptionist) Type words per minute for up to hours per day

7 ADA Environmental considerations Exposure to heat, cold, night hours, swing shifts, inability to take break, high-stress or high-pressure environment Consider popular accommodation requests (and ambiguous disabilities), and draft job descriptions accordingly: Time off work/work from home ( must be present in the facility and interact with customers) Breaks as needed ( sitting and performing x task for up to four hours at a time ) Stress-free environment ( doing x in a fast-paced, high-pressure environment be specific)

8 Title VII/ADEA Tests (before or during employment) must be strictly in line with job description Termination/discipline for performance issues should tie to job description Use extreme caution when describing: Education Work experience Physical characteristics ( youthful, able-bodied, strong ) Personal characteristics (or do not refer to them at all) Do not draft job postings/descriptions with a specific candidate in mind Avoid using upper limit for length of experience

9 FLSA Executive exemption The employee s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and The employee must have the authority to hire or fire other employees, or the employee s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight

10 FLSA Administrative Exemption The employee s primary duty must be the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer s customers; and The employee s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. Professional Exemption The employee s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; The advanced knowledge must be in a field of science or learning; and The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

11 FLSA Remember, DOL will interview incumbent employees (and sometimes quiz them about job responsibilities) Primary duty = the most frequently or most important performed task

12 Affirmative Action OFCCP considers job descriptions when testing formation of job groups Content, wage rates, and opportunities Lines of progression may be evident in job descriptions Look out for pay discrimination! Must retain job descriptions, job postings, interview notes, etc. for 2 years (or one year for <150 employees or $150,000 contract)

13 Equal/Fair Pay Act Prima facie case of pay discrimination: different wages are paid to employees of the opposite sex; the employees perform substantially equal work on jobs requiring equal skill, effort and responsibility; and the jobs are performed under similar working conditions Lilly Ledbetter had same job description as her male peers Affirmative defenses: (i) seniority-based; (ii) merit-based; (iii) production-based; or (iv) any other factor not based on sex

14 NLRA Union has right to job descriptions And will use them to demand equal pay between positions Job responsibilities indicating supervisory status are not necessarily determinative; but the absence of supervisory responsibilities may be

15 Workers Comp Whether injury was work-related can turn on job description (Wallyball case).

16 Other Practical Uses Performance evaluations Access to confidential information or physical parts of facility Job interviews Employment contracts and offer letters Consider including reporting relationships Consider including certain specific production requirements Note unusual, dangerous, or difficult job conditions Job description/flsa audit

17 DONT S Do not include employee rights Although CBA may require certain terms, such as working conditions, tools used and provided, etc. Do not include non-existent job functions or responsibilities Denote non-essential job functions (e.g., attending training sessions, team-building events) Do not allow them to get stale Do not use bad or inaccurate job descriptions track them down, burn them (*subject to recordkeeping requirements), and create a clear record of which job descriptions are in place

18 Job Postings EO Must contain appropriate EEO language Trigger applicant tracking responsibilities Title VII Should not adversely impact protected category Consider diversity efforts Why should postings be different than job description?

19 Drafting Strategies Include all essential functions Include buzzwords for exempt status Eliminate business-speak, generic terms, non-specific and subjective references Disclaimers: The information contained herein is not intended to be an allinclusive list of the duties and responsibilities of the job, nor are they intended to be an all-inclusive list of the skills and abilities required to do the job. Management may, at its discretion, assign or reassign duties and responsibilities to this job at any time. The duties and responsibilities in this job description may be subject to change at any time due to reasonable accommodation or other reasons. See SBA tips