Tuesday, October 12, 2010

Starting Out On the Right Foot

Well Drafted Job Descriptions Prevents Lawsuits

When I am asked about whether a company needs to write job descriptions, I am reminded of a well-versed passage from Dr. Seuss.

“So be sure when you step. Step with care and great tact and remember that life's a great balancing act. Just never forget to be dexterous and deft. And never mix up your right foot with your left." Dr. Seuss (Oh, the Places You'll Go!)

No one, it seems, enjoys the tedious task of writing job descriptions. Moreover, when human resource professionals learn that no law requires a company to have job descriptions, the individual tasked with the job wants to find a way out of it. So, they call me and ask, “Do I have to?” My answer is, (though I don’t rhyme it), the same as Dr. Seuss’. If your company is not dutifully writing and updating job descriptions, you are “mixing up your right foot with your left.”

A job description is simply a clear, concise depiction of a job's duties and requirements. A well drafted job description, however, is a key proactive strategy to preventing lawsuits. Think of it as starting off on the right foot with a prospective employee.

Job Descriptions Can Prevent Disability Discrimination Claims
When an employee sues his or her employer for violating the Americans with Disabilities Act (ADA), or an analogous state law, in California we have the Fair Employment and Housing Act (FEHA), the employee is alleging that he or she was treated unfairly because he or she has a disability, but was otherwise qualified to perform the essential functions of the job. The conduct that is at the heart of the allegations may occur at any point in the employer-employee relationship. It can occur during the hiring process, through compensation determination, during performance reviews, consideration for promotion, disciplinary actions and in termination. The federal and state laws ask employers, under certain circumstances, to reasonably accommodate employees with disabilities, so that the disability is not a reason for any job related decision. That is, a company may be asked to provide a sign language interpreter for a hearing impaired employee during training seminars so that the employee does not miss out on critical training and is able to participate in meeting as was the subject of the case in EEOC v. UPS No. 08-56874, 9th Cir., 2010.

When employers are sued for discriminating against someone with a disability or failing to provide a reasonable accommodation, the company’s defense may be that the employee or applicant is unable to perform the essential functions of the job, and that the employee cannot reasonably be accommodated. The job description, if written before the alleged discriminatory conduct occurs, is “evidence” of the essential job functions. (Obviously, if written afterward, it could be conveniently drafted to exclude the employee’s known inabilities. This was the case in a recent EEOC lawsuit filed against Woodman’s Food Market because they conveniently changed the “lifting requirements” in the essential functions of their disabled employee’s job, which she had been successfully performing, in order to terminate her.) When written beforehand, the job description demonstrates that an employer has put the employee on notice that if he or she cannot perform this function (with or without a reasonable accommodation, in California,) the employee is not “qualified” for this position.

Well drafted job descriptions should provide objective, quantifiable functions. For example, “the job requires the employee to move and lift packages” is subjective as to what a person might consider “too heavy to lift” and how often that is done. If the mail room attendant must move one small bag of mail per day, this can be done easily by someone with a weak back, but if the job requires “lifting mail bags, which weigh 20-80 lbs each, 75% of each shift scheduled” this should be stated, this specifically, in the essential functions of the job so that individuals with bad backs who cannot perform this arduous labor are on notice and cannot state that this requirement wasn’t “part of their job” when they sue you for wrongful termination. Remember to be open-minded about how the function is done so as to allow for differently-abled employees to accomplish the results of the tasks in different ways. For example, a mail room attendant who uses a wheelchair may be able to move mail bags using a cart or mechanized lifting device.

Job Descriptions Can Prevent Other Types of Disparate Impact and Disparate Treatment Claims
The job description should be a blueprint for hiring, performance review, and progressive discipline to demonstrate a company’s fair, consistent and objective standards for measuring an employee’s abilities. When hiring, for example, the interviewer will use the “job duties” set forth in the job description to avoid asking the “wrong questions.” Wrong questions demonstrate subjectivity, mirror image favoritism (i.e. hiring the applicant that reminds the interviewer of themselves), or questions about “protected categories” i.e. about religion, marital status, veteran status, etc. By simply sticking to the “script” of job duties’ questions set forth in the job description, the interviewer will avoid a claim of discriminatory hiring practices. For example, instead of asking an applicant if their planning on having more children, as casual conversations often flow, the interviewer will ask, “How will you approach the task of designing a course catalog for our company?” The same holds true for how managers can approach performance reviews, promotions and progressive discipline. That is, they can use the job duties and responsibilities set forth in the job description to demonstrate that the employee met, exceeded or failed to meet the expectations of the job. This will help defeat a claim from the employee that he or she was treated “unfairly” or targeted by their manager in the process.

Of course, the job description should not contain duties or functions that are designed to exclude groups of individuals. That is, requiring that a “Social Media Manager” be “youthful or energetic” is asking for an age discrimination claim because it is based on a stereotype and will most likely exclude or discourage older applicants.

Job Descriptions Can Prevent Wage & Hour Claims
Job descriptions can help demonstrate whether an employee is properly classified as exempt or nonexempt. In cases where an employee is suing his or her employer over lost wages, such as overtime pay that he or she alleges she was denied because he or she was misclassified as exempt, the courts look to the duties performed by that employee. In California, job titles don’t determine exempt status, but job duties and salary are determinative. Therefore, if an employer wants to ensure that an employee is exempt, he or she must ensure that the employee is getting paid a certain salary and is performing certain “exempt” work more than 50% of the time. This expectations of duties should be stated in the job description. In addition, if the employee is exercising independent judgment or discretion with respect to matters of significance, these areas of significance should be set forth clearly in the job description. If the employee is supervising others, if the role requires certain certification, licensing, specialized training or knowledge then this should be set forth clearly in the job description as it pertains to exempt status as well. Last, just writing these duties in the job description doesn’t automatically make a job exempt, the employee must actually be performing the exempt duties the majority of the time. Nevertheless, setting these expectations out in writing will help ensure that the employee understands these expectations and strives to meet them or attempts to manage his or her time accordingly. Of course, when job duties and roles change, the job descriptions should be updated as well to reflect and/or maintain the expectation of exempt/nonexempt duties and salary expectation.

Job Descriptions Can Make You an “Employer of Choice” - Employees Don’t Think About Suing Them
Bottom line, employees want to work for companies that demonstrate leadership and value diversity. These are companies that have few employee lawsuits because they value employee for what they can do, not what they can’t do; for who they are, not how they are. Employees don’t feel compelled to teach these employers lessons through litigation, because they are grateful that they have a job with an employer that exhibits a raised awareness already. The job description sets this tone. Job descriptions that encourage differently-abled applicants and diverse applicants to apply demonstrate this commitment to employees and this raised awareness about how to value employees.

If cost is a concern, consider that the average accommodation costs $600 or less, according to research conducted by the Job Accommodation Network (JAN), a service of the U.S. Department of Labor’s (DOL) Office of Disability Employment Policy (ODEP), and many valuable support services are offered at no cost, not to mention the tax write-offs for hiring disabled veterans, some employers actually make money in the process of hiring disabled employees, experts say.

The job description will help your company prevent these types of lawsuits. I am including a Sample KC&A Job Description* to provide guidance if you feel tripped up. But, remember that in order to be proactive about drafting job descriptions, you must try not to mix up your right foot with your left.
*The samples are not intended to be "ready for use" by readers. In addition, they are not to be construed as legal advice. Rather, these forms are intended as samples and should be adapted to your particular company's needs. Although this work is copyrighted, you may freely use the content in creating or changing your own forms. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.