Presenting a live 90-minute webinar with interactive Q&A Creating and Maintaining Legally Compliant Job Descriptions: Avoiding Missteps Under the FLSA, ADA, FMLA and Other Laws THURSDAY, MAY 25, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Joon Hwang, Esq., Littler Mendelson , Tysons Corner, Va. Brandon R. Mita, Esq., Littler Mendelson , Washington, D.C. 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 .
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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
Presented by: Brandon R. Mita Joon Hwang Littler Mendelson, P.C. Littler Mendelson, P.C. Tysons Corner Office Washington, D.C. Office 703-286-3136 202-789-3407 JHwang@littler.com BMita@littler.com 5
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 6
Why Have a Job Description? 7
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 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 organization (e.g., requirements for higher education may result in higher pay) 11
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 12
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 14
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. 15
Why this is important! FLSA Lawsuits – 8,308 in 2016 Number of FLSA Filings 10000 8,954 8000 8,308 8,066 7,708 7,550 6000 5,644 4000 4,039 2000 1,967 0 2001 2005 2009 2012 2013 2014 2015 2016 Data provided by Law360.com 16
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 17
FLSA Considerations • Exemptions include: – Executive – Administrative – Professional – Computer – Many Others • Highly-Compensated • Recreational • Motor Carrier • The list goes on and on … 18
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.) 19
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 20
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 21
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 23
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 24
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 25
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