BOP NEWSLETTER • WINTER 2017

The Value of Job Descriptions

by Rebecca Boartfield & Tim Twigg

Mention job descriptions and there is usually one of two reactions. Either people’s eyes immediately glaze over, or they automatically respond with “got ‘em, my bases are covered.”

Fewer things may seem as uninteresting to talk about as job descriptions – even in the world of HR. They are not scary, like lawsuits. They are not funny, like some of the crazy things employees do. They certainly don’t seem sexy or cool. Job descriptions are one of the least talked about and one of the most under appreciated aspects of employment compliance.

The reality is that we find most employers don’t have any; completely disregarding an essential element to employee management. When they do, they’re not done well; completely eliminating the value of having done them in the first place.

Bottom line: as an employer or manager of people, you need to know why they’re important, how best to write them, and when to make use of them. In the end, you may not think they’re any more exciting than you do now, but hopefully you’ll appreciate their value more than you have previously.

Why Bother?

There are a plethora of reasons to have accurate job descriptions on hand for every position within the business. Here are just three:

1. Hiring tool: A job description helps to focus on the skills needed for the job as well as the duties. When interviewing, job descriptions can be used as the basis for developing solid job-related interview questions that help you identify whether candidates have the skills and abilities you need. The job description helps write a better advertisement and a copy of the job description shown to applicants gives them an accurate picture of the job. A new hire that quits because the job “wasn’t what I expected” can cost you time, money, and productivity. When new employees are provided a well-written job description, you set the stage for better performance.

2. Staff management tool: A work environment where assignments and responsibilities are unclear is confusing, wastes time, and can lead to misunderstandings and disagreements. On the other hand, when employees clearly understand what is expected, they have the necessary information to focus on the most important responsibilities and to be more productive.

One of the easiest, most effective ways to let employees know what you expect is with well-written job descriptions. Once the employee is hired, go over the job description in detail with him/her, emphasizing any duties that may require training. This will ensure that s/he knows exactly what is expected.

3. Support employee decisions: If an employee or a government agency challenges an employment decision, one of the most important documents you will be expected to provide is a copy of the job description. This can be a key component in defending your employment decisions. Job descriptions document the duties, qualifications and physical requirements of a job, and therefore help you support why you felt one applicant was qualified and another was not, why you pay one employee more than you pay another, or why you terminated an employee for poor job performance.

What should it include?

A good job description is comprised of the following key elements:

  • Title of the position
  • Employment status (exempt or non-exempt)
  • A statement of the major purpose of the position
  • Minimum eligibility requirements for adequate performance
  • A description of the physical demands, the type and amount of work to be performed
  • The individual or position the employee reports to
  • “Essential functions”

 

What are “Essential Functions”?

The concept of essential functions cannot be understated. This is a critical component of a comprehensive job description. Job descriptions should not include every nuance of the position. There is a difference, and rightly so, between a “Standard Operating Procedure” and a job description. For example, a standard operating procedure would be to describe the morning process for getting ready to receive clients, like booting up computers and turning on lights. These things can be done by anyone. A job description captures that which is essential to a specific position. An example of an essential function might be a front desk employee at a dental office being responsible for all insurance billing.

According to the Equal Employment Opportunity Commission (EEOC), “Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance. This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing.”

When writing essential functions, consider:

  1. What employees actually do and the amount of time spent on each function.
  2. The amount of work to be performed.
  3. Keeping sentence structure as simple and concise as possible.
  4. Beginning each sentence with an active verb and avoiding using the words “responsible for”.
  5. Including a percentage of time each essential function consumes as part of the whole job. Adding the percentage of time to each essential function involved helps clarify the level of importance that particular duty has as it relates to all other duties. For example, “Answers telephone, routes calls, provides information, and takes messages in accordance with practice procedures. 20%”

Under all disability laws, inability to perform non-essential, or marginal, functions of a job is generally not an acceptable reason not to hire or promote an individual with a disability. Therefore, it is important to distinguish clearly between essential and marginal duties on a job description.

If a hiring or employment decision is challenged, you may be required to show that the qualification standards used in the decision-making process are job-related and consistent with business necessity. A job description with essential functions listed can serve this purpose. In order to use a job description to back up your decisions, it must be prepared before advertising or interviewing for a job. A job description prepared after a claim is filed will not be considered as evidence.

When do I use them?

As mentioned, essential functions are used in hiring, ongoing personnel and performance management, and supporting decisions. However, one of most important reasons to use a job description is to clarify reasonable accommodation decisions.

Disability laws impact nearly every employer, whether the employer has 100 employees or 5 employees. The purpose of disability laws is to ensure that individuals with disabilities are given the same consideration for employment decisions as individuals without disabilities.

These laws protect individuals from adverse employment action based on their disability alone. Adverse employment actions are demotions, terminations, cut in hours, etc. – basically anything in which the individual suffers a setback. When employers are confronted with an employee who has a mental or physical disability, the employer must consider making reasonable accommodation for that individual to continue employment.

Reasonable accommodation is defined by the EEOC as “any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.”

An employer must make a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee, unless the employer can show that the accommodation would cause an undue hardship on the operation of his/her business.

An accommodation causes an “undue hardship” if it is too difficult or expensive for an organization to provide. What is considered reasonable varies greatly and depends on the size and resources of the organization, as well as on the nature of the accommodation. The burden of proof is on the employer to show that an accommodation is too expensive, too difficult or too disruptive.

How do you decide (and prove) if accommodation is reasonable or not? This is where the importance (and necessity) of having well-written job descriptions comes into play. It begins by obtaining medical information from the employee who states s/he cannot perform his/ her job duties and is looking for an accommodation. Let’s play this scenario out:

  • Employee indicates either directly or indirectly that s/he cannot perform a job duty
  • By reviewing the job description, it is determined that it is an essential function
  • Employee must provide information from his/her treating physician about what s/he can and cannot do as it relates to the essential functions
  • Employer sends medical certification paperwork to the treating physician along with an accurate, up-to-date job description
  • Using the job description, the treating physician makes an assessment and provides the medical certification form back, indicating what the employee can and cannot do or what s/he needs in order to rectify the disability issue. This could be time off, reduction in work duties, reduction in work hours and so on
  • Employer receives this information and begins the process of determining reasonable accommodation or undue hardship

If an employer goes through this process without providing the job description that contains the essential functions, then the employer would have no documentation to otherwise support/defend any decision or adverse action taken with the employee as a result.

Conclusion

a management tool, job descriptions can play a key role in a variety of situations – from the start of the relationship to the end of the relationship and everything in between. As consultants, we see firsthand the challenges employers face as the result of not having well-written job descriptions that are kept up-to-date. To limit risk and liability, good documentation is the key. Your job descriptions represent the most underutilized and most needed document of them all. They are the go-to document for us and should be for you too.

Bent Ericksen & Associates • 800.679.2760 • info@bentericksen.com

YOU ASK, WE ANSWER

Q: I know I’m supposed to complete an I-9 form with all employees upon hire. Did California just pass a new law requiring something more?

A: California did not pass a law requiring more than an I-9 form. It passed a law expanding control over how an employer manages I-9 documents. This law went into effect January 1, 2017. Here are some of the details: 1) It protects applicants for employment in addition to employees. Now, document abuse at the point of application for hire is included in punishable activity. 2) It prohibits employers from refusing to honor documents based on specific status or term of status and from attempting to reinvestigate or re-verify the work status of a current employee unless by request of the federal government. 3) It expands enforcement by creating a new state remedy. Now, aggrieved individuals can file a complaint with the California Labor Commission’s Office, which can penalize employers up to $10,000 per violation.

Q: There’s been a lot of hubbub about the new law in Massachusetts regarding pay equity. Can you tell me a little more about it?

A: Yes, the new pay equity legislation in MA is sweeping and much attention has been given to it. It will not go into effect until July 1, 2018 so there is time to digest and prepare.

Here are some components of the law:

  • Employers are prohibited from discriminating on the basis of gender in the payment of wages and other compensation for “comparable” work.
  • Pay variations are not prohibited if they are based on: seniority with the employer; a merit-based system; a system that measures the quantity or quality of production, sales, or revenue; the geographic location where the job is being performed; education, training, or experience, to the extent those factors are reasonably related to the particular job; or travel, if travel is a regular and necessary part of the job.
  • Employers may not reduce the wages of an employee for the sole purpose of complying with the law.
  • An employee’s previous wage or salary history may not be used as a defense to a claim made under the law.
  • Employers may not prohibit employees from inquiring about, discussing, or disclosing their own wages or another employee’s wages.
  • Employers are prohibited from seeking the wage or salary history of an applicant from the applicant’s current or former employer. However, if the applicant voluntarily discloses the information in writing, the employer may confirm the prior wage or salary or permit the applicant to provide confirming information. In addition, an employer may seek or confirm an applicant’s wage or salary history after an offer of employment with compensation has been negotiated and made to the applicant.

Employees have multiple options for enforcement under the law, including filing single plaintiff or class-action litigation or pursuing a claim through the state Attorney General. Available damages include unpaid wages, liquidated damages (i.e., doubling of the unpaid wages), and attorneys’ fees.

The statute of limitations for a claim will be three years after the date of the alleged violation. The law defines “alleged violation” somewhat broadly to include (1) when the alleged discriminatory compensation decision and/or practice was adopted; (2) when the employee became subject to the alleged discriminatory compensation decision and/or practice; or (3) when the employee was affected by the application of the alleged discriminatory pay decision and/or practice, including each time wages were paid (when the wages result from the alleged discrimination). This effectively means that the statute of limitations is reset with every paycheck, similar to the extended statute of limitations under the federal Lilly Ledbetter Fair Pay Act of 2009.

Did You Know?

California expanded transgender protections.

On September 29, 2016, California Governor Jerry Brown signed AB 1732, which will require single-user restrooms in California business establishments, government buildings, and places of public accommodation, to be universally accessible to all genders, and identified by signage as all gender. A “single-user” restroom is defined by statute as a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user. The new law, which takes effect on March 1, 2017, authorizes public inspectors or building officials to check for compliance during any inspection.

Pennsylvania clarified use of payroll debit cards.

Under the new law, the use of payroll debit cards is permitted if, among other things,

  • The employer does not mandate the use of payroll debit cards;
  • The employer complies with stringent notice requirements;
  • The employee is allowed one free withdrawal of all wages earned per pay period;
  • The employee is provided a free method of checking the balance on the card electronically or by telephone; and
  • There are no fees for using the payroll card.

The new law takes effect on May 5, 2017.

A new I-9 form has been published.

The U.S. Citizenship and Immigration Services (USCIS) released the new form I-9 dated November 14, 2016. Starting January 21, 2017, employers are required to use this new form. Among other things, the new form provides clearer instructions for employees and employers on how to complete the form. For those employers who will complete the form electronically, the new I-9 provides “smart fields” which will limit errors by those entering data into the form. This new form will replace the version and will be valid until August 31, 2019.

Exemption salary thresholds in New York increased December 31, 2016

New York State has raised the exemption levels. Specifically, the changes affect the salary threshold at which those who work in an administrative or executive capacity will be considered exempt from state wage and hour provisions. The exemption levels will increase to different levels according to the date, size of employer, and location within the state. Here is a link to the New York Department of Labor wage order summary: https://labor.ny.gov/formsdocs/wp/Part142.pdf

WHAT’S NEW in Employment Compliance

Washington

Washington State Passes Paid Sick Leave

Starting January 1, 2018, Washington employers must provide paid sick leave to employees. Here are some details:

  • Employees must accrue one hour of paid sick leave for every 40 hours worked. There is no limit on the number of hours an employee may accrue in one year. An employer may choose to front-load the sick leave entitlement so long as the frontloaded amount is sufficient to meet the requirements of the law.
    Accrual begins on the first day of employment.
  • Employees may use paid sick leave for a number of different reasons.
  • Paid sick leave may be used beginning on the 90th calendar day of employment.
  • Employers may not require an employee using paid sick leave to find a replacement worker to cover hours for which the employee is using paid sick leave.
  • Employers are only required to permit employees to carry over 40 hours of paid sick leave.
  • Upon separation of employment, employers are not required to pay employees for any accrued, unused paid sick leave.
  • Employers may not discriminate or retaliate against employees for their use of paid sick leave.

Arizona

Arizona Passes Paid Sick Leave

Starting July 1, 2017, Arizona employers must provide paid sick leave to employees. Here are some details:

  • Employees must accrue one hour of paid sick leave for every 30 hours worked.
  • For an employer with 15+ employees, accrual can be capped at 40 hours per year. For an employer with less than 15 employees, accrual can be capped at 24 hours per year.
  • An employee may use earned sick leave as it is accrued once a 90-day waiting period has been completed.
  • Employees may use paid sick leave for a number of different reasons.
  • The statute permits an employer to request “reasonable documentation” that earned sick leave is used for a proper purpose only where an employee seeks to use three or more consecutive work days of sick time.
  • An employee must be permitted to carry over unused, accrued sick time but cannot use this carried-over amount to increase his or her maximum use caps for that year.
  • Upon separation of employment, employers are not required to pay employees for any accrued, unused paid sick leave.
  • The Act provides that it is “unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected” by the Act.

2017 IRS mileage rates

Beginning January 1, 2017, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

  • 53.5 cents per mile for business miles driven (down from 54 cents in 2016).
  • 17 cents per mile driven for medical or moving purposes (down from 19 cents in 2016).
  • 14 cents per mile driven in service of charitable organizations (same as 2016).

Guidance issued by Equal Employment Opportunity Commission (EEOC) on the rights of employees with mental health conditions

On December 12, 2016, the EEOC issued a “resource” document titled “Depression, PTSD, and Other Mental Health Conditions in the Workplace: Your Legal Rights.” The document highlights the fact that individuals who are suffering from depression, post-traumatic stress disorder or other mental health conditions are protected, under the Americans with Disabilities Act, against discrimination and harassment at work because of their condition. Furthermore, these individuals have a right to request reasonable accommodations that can assist them in performing their job. Here is a link to this document: http://www.disabilityleavelaw.com/wp-content/uploads/sites/173/2016/12/Depression-PTSD-and-Other-Mental-Health-Conditions-in-the-Workplace.pdf

California expands Fair Pay Act again

Starting January 1, 2017, companies of all sizes doing business in California will need to take extra care to ensure they are not paying employees differently based on their race or ethnicity or basing new employees’ compensation solely on their prior salary.

Specifically, the law—known as the Wage Equality Act of 2016—adds language to California Labor Code Section 1197.5 prohibiting an employer from paying “wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work.” Previously, the law only contained such protections based on gender.

The amendment prevents employers from using “prior salary … by itself” to justify any pay disparities between workers. As the legislature wrote in its findings and declarations, the act is designed to help parties “negotiate and set salaries based on the requirements, expectations, and qualifications of the person and the job in question, rather than on an individual’s prior earnings, which may reflect widespread, longstanding, gender-based wage disparities in the labor market.”

Employers can still pay employees differently if they can establish one of several factors: (1) a seniority system; (2) a merit system; or (3) a system measuring earnings by quality or quantity of production (such as paying more to an employee who makes more widgets or has higher sales than the lower-paid employee). Employers can also base different pay rates on a bona fide factor other than sex, race, or ethnicity. In doing so, the employer must establish that the factor is not based on gender, race, or ethnicity; is consistent with business necessity; and is job-related to the position in question.