the FLSA, ADA, FMLA and Other Laws THURSDAY, MAY 25, 2017 1pm - - PowerPoint PPT Presentation

Creating and Maintaining Legally Compliant Job Descriptions: Avoiding Missteps Under the FLSA, ADA, FMLA and Other Laws

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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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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

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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

• rganization 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

• rganization (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

13

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

• vertime 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 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)

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

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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
• r 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.

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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.

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)

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FMLA Considerations

34

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

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%

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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

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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.

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

• ffice
• Plan company events

and employee recognition program

47

Preparing Job Descriptions

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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

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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

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

• verview of the requirements of the job and does not

entail a comprehensive listing of all activities, duties,

• r 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 JHwang@littler.com Brandon R. Mita Littler Mendelson, P.C. Washington, D.C. Office 202-789-3407 BMita@littler.com

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