©2013 Bose McKinney & Evans LLP FUNDAMENTALS OF HUMAN RESOURCES Jonathan L. Mayes, Esq. and Jeffery...

©2013 Bose McKinney & Evans LLP

FUNDAMENTALS OF HUMAN RESOURCES

Jonathan L. Mayes, Esq. and Jeffery Halbert, Esq.

Bose McKinney & Evans LLP

111 Monument Circle, Suite 2700

Indianapolis, IN 46204

317.684.5000

October 8, 2014


Job Descriptions

What You Need to Know About Job Descriptions

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Job Descriptions

Overview

Not an exact science

Simple task in thought, but poor implementation

Employer failure to prepare sufficient description of position or ignore all together

Essential to employee and employer understanding of expectations and functions of position

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Job Descriptions, cont.

Practical and legal reasons to draft, maintain and update descriptions for every position

Defense of discrimination or other employment related claims

Assist in determining essential functions for purposes the ADA

"qualified individual" and essential functions

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Why do I need job descriptions?

Tools for recruiting

Determining compensation

Conducting performance evaluations

Clarifying expectations, goals

Creating reasonable accommodation procedures and controls

Measuring tool for management

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C. Benefits of Effective Job Descriptions

Provides opportunity to clearly communicate employer direction, goals, vision and mission, and employee's role

Sets clear expectations

Provides legal defense

Provides supervision with a clear understanding of individual responsibilities

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D. Common Mistakes

Describing employee instead of job (i.e., basing description on previous individual holding position rather than actual duties)

Using imprecise, inaccurate, vague or ambiguous language

Lack of specificity as to what individual is expected to do

Incorrect: “Librarian should manage books.”

Correct: “Librarian should attend to library materials at every stage in the process to ensure maximum circulation of materials, including _____."

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Failure to regularly update and provide copies to employee or acknowledgement of understanding from employee

Failure to allow for flexibility (i.e., cross-training, assistance of others to accomplish tasks)

Failure to utilize job description during hiring or promotion process

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E. Drafting Effectively developed job descriptions act as

communication tools between employers and employees

Poorly drafted job descriptions create confusion, discontent, resentment and potential liability

Job descriptions should be written and describe the duties, responsibilities, required qualifications, and reporting relationships of a particular job

Should be based on objective criteria obtained through specific analyses of the job(s), an understanding of the competencies and skills required to complete essential tasks and the needs of the employer to produce work product

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Clearly spell out and identify responsibilities of position

Include information discussing working conditions, tools and equipment to be used, necessary knowledge and skills, and relationships to other positions

Use gender neutral references (chairman v. chairperson)

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F. Developing and Implementing a Job Descriptiona. Job Analysis

Gather, examine, and interpret information about a position’s tasks to obtain an accurate understanding of the job so that it can be performed efficiently

Interview employees to determine what tasks are being performed

Observe how the tasks are performed

Employee questionnaires

Review other outside resources such salary surveys

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Document results and reviewed with employee currently holding position and supervisor to determine if modifications to knowledge, skills, abilities, physical characteristics, environmental factors or credentials/experience

Knowledge: information obtained by experience or study

Skill: competence to perform a learned activity

Ability: competence to perform an observable behavior or behavior that results in observable product

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Physical characteristics: physical attributes an employee must have in order to perform job with or without reasonable accommodation

Environmental factors: working conditions

Credentials/experience: minimum level of education, experience and certifications for the position

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b. Essential v. Non-Essential FunctionsEstablish a performance standard

Determine tasks that are part of job function are necessary or are a requirement to perform the job

Frequency at which the task will be performed or how much time devoted to performing a task

What consequences occur from not performing a function and whether this would be detrimental to operations

Can tasks be reconfigured or performed in another manner

Should tasks be reassigned to another employee

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Determination of whether function is essential or marginal

“essential function” should appear in job description and should explicitly state how the individual is expected to perform the job

c. Organize Data Collected

Descriptions should be uniform and standardized

Information to include:

Date of creation (including date of last revision)

FLSA Classification

Position Title

Function of position

Reporting structure

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Supervisory responsibilities

Position description with general areas of responsibility listed

Essential functions with examples

Required knowledge, skills and abilities

Required education and experience

Description of the physical demands

Description of the work environment

Unplanned activities (i.e., “other duties as assigned”)

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d. Employee Acknowledgement

Important for validating description

Should include signature for approval of management or applicable supervisor

Indicates employee understanding of requirements, essential functions and duties of position

e. Finalize

Draft description should be reviewed and approved by upper management

Once reviewed, incorporate any suggested changes

Final descriptions should be maintained in a secure location and copies used for job postings, interviews, accommodation requests, compensation and performance reviews

Post on library intranet

Update and review periodically

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FLSA Issues

a. Proper classification is key

"duties" v. title

Exempt v. non-exempt

b. Description must match the reality of the job, not what management believes the job to entail (importance of updating and audits)

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H. ADA IssuesADA prohibits discrimination against qualified individuals with a

disability on the basis non-job related factors.

Cannot inquire of an applicant whether an individual has a disability or as to the nature or severity of such disability pre-employment

During the hiring process, an employer is permitted to describe the nature of the job, essential functions and ask applicant if he/she is capable of performing the duties of the job. However, an employer is prohibited from making disability related inquiries and should be wary of volunteered information concerning disability from the applicant.

May ask about ability to perform both essential functions and marginal functions, but may not refuse to hire an applicant with a disability because the applicant’s disability prevents him from performing marginal functions.

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If a disability will not interfere with or prevent the performance of job related functions, the employer may only request a description or demonstration of the applicant if it routinely makes such requests of all applicants in the same job category.

Title I of the ADA requires employers to provide reasonable accommodations to qualified applicants and employees with a disability unless the employer can demonstrate that doing so creates an undue hardship to the employer or poses a direct threat to the safety of the employee or others in the workplace.

Type of accommodation will vary

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I. Other Legal ConsiderationsEqual Pay Act: ensure that there’s no disparity in pay

rates for genders performing the same role.

Title VII: prohibits discrimination with respect to hiring, compensation and other terms, conditions, and privileges of employment based on race, color, religion, sex or national origin. However, this does not prohibit an employer from hiring or promoting on the basis of qualifications and merit.

ADEA: allows employer to make decision based on a reasonable factor other than age (e.g., required educational degree for hiring or termination for poor performance); allows decision to take into account age if age is bona fide occupational qualification (BFOQ); or to comply with a bona fide seniority system or bona fide employee benefit plan

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At-Will Employment: no language in job description that states or implies that the job is anything other than at-will

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Employee Manuals

An Overview of Policies and Developing Your Employee

Manual

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Employee Manuals

Importance of Having an Employee Policy Manual

Fulfills employer legal obligations and serves as evidence of employer good faith efforts to comply with applicable laws (i.e., FLSA, Title VII, FMLA, state law etc.)

Employee Communication; Informs employee of their rights and at the same time defends you against lawsuits arising out of an employee's lack of understanding

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Employee Manuals, cont.

Provides legal protections against damages and liabilities from employee lawsuits

Creates uniformity; explains employer expectations

Provides valuable information to employees and explains rules, policies, benefits etc.

Serves as a reference guide to all employees

Increases employee efficiency (as well as management) and may shorten training periods

One size does not fit all; draft specific to organization

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B. Precautions to Take in Drafting

Should be straightforward and in simple language; avoid ambiguity and confusion

Should be regularly updated with attention to changes in applicable laws

If you implement a policy, apply uniformly and consistently

Don't implement policies you don't intend to adhere to

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C. Subject Areas to Consider for Inclusion

Introduction to Handbook

History of Employer

Employment Status

Hours of Work and Overtime

Payroll and Wage Deductions

Employee Orientation

Background Checks

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D. Necessary Policies

Non-Discrimination Policies

EEO policy statement

Non-discrimination and harassment, including sexual harassment

ADA Accommodation

Employee dating/non-fraternization

Attendance and Leave of Absence

Attendance policy, including discussion of job abandonment

Medical Leave of Absence

Personal Leave of Absence

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FMLA Policy, including military leave amendments, GINA disclaimer and FORM 1420)

Military Leave (USERRA and Indiana state law)

Vacation, Personal Days, Sick Days, PTO, Holidays

Workers Compensation, STD, LTD

Jury Duty, Bereavement

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Compensation and Benefits

Timekeeping Requirements

Meal and Rest Periods, including break periods for nursing mothers

Reviews and Appraisals

Payroll and Wage deductions

FLSA Safe Harbor Statement (applicable to wage deductions from exempt employee compensation)

Payroll Advances

Health Insurance and other related benefits

401(k) Plan or other retirement benefit

COBRA

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Technology

Computer Use, including internet and e-mail

Cell Phones/Texting

Social Media

Workplace Monitoring

Confidentiality of Library Information

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Safety and Health

Workplace Accidents

Tools and Equipment

Smoking and Tobacco Use, including e-cigarettes

Guns and Weapons

Workplace Violence

Substance Abuse Policies, including testing

Drug-Free Workplace

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Miscellaneous Policies

At-Will Employment Policy Statement

Work Rules and Employee Conduct

Progressive Discipline

Dress Code and Uniforms

Conflict of Interest

Moonlighting

Personnel Records

Reference Requests

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Termination of Employment

Exit Interviews

Implementation, Acknowledgement and Revision

Distribution to Employees

Employee Acknowledgements

Periodic Updates

Maintenance

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Employee Coaching and Discipline

The How-To's of Employee Coaching and Discipline

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Employee Coaching and Discipline, Cont.

a. Coaching v. DisciplineIn general, disciplinary action is the result of employee

violation of work rule or other employer policy

Coaching serves as an alternative to disciplinary action in an attempt to allow employee to address performance deficiencies

Formal discipline and coaching take many forms and can have a variety of effects on the workplace

Dependent upon management style and philosophy

HR, supervisors and managers need to further understand the differences in order to evaluate the best approach

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b. OwnershipApplication of disciplinary procedures places

ownership of the issue on the manager, supervisor and human resourcesIn most cases, the employee is asked to react in some

manner to the action being taken and it is then the manager's responsibility to ensure the corrective action is taken or the conduct does not reoccur

Ownership of the issue on both the manager and employee. Allows for the creation of a solution to the issue

and places onus on employee to find ways to solve the issue with guidance from the manager

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Opportunity

Coaching is based on creating an opportunity for both the manager and employee to learn how to improve their relationship by allowing the manager to identify the core issues and work with the employee towards resolution

Discipline addresses the problematic conduct but does not address the root of the problem

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Relationship

Coaching serves as an opportunity to improve employee performance and at the same time improve manager and employee relationships (similar to interactive process under ADA)

Discipline results without attempting to interact with the employee which may lead to additional issues such as lost morale, loss of production and employee turnover

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Retention

Coaching creates a workplace based on an active relationship between the manager and employee.

If employees have an issue they are informed that they may approach the manager to resolve the issue

Discipline tends to create a workplace where employees are less likely to approach a manager to resolve issues

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f. When is Coaching Appropriate?

Goal is not to make the employee feel badly. Coaching attempts to work with an employee to solve performance problems

Possible Coaching Opportunities

Employee is performing poorly or appears discontent without explanation for a change in behavior

Employee hasn't received all required training or lacks an understanding how to approach management

To explain employee's work expectations and/or to expand employee skill set

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g. Effective Coaching SuggestionsRecognize and describe issue

Indicate confidence in employee ability and solicit employee's help with finding a resolution to issue

Focus on problem or behavior that needs improvement, not the person and seek out the employee's view

Determine whether there are limitations to the employee's ability to perform a specific function or to accomplish objectives and consider how these limitations can be eliminated

Discuss potential solutions or improvements that can be made; ask employee for ideas on how to correct the problem and prevent it from happening

Agree on a written plan of action that lists what the employee, the manager or other team member will do to correct the problem

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When does Coaching Become Discipline?

If an employee fails to address certain acknowledged performance issues that have been discussed

May include a verbal or written plan (i.e., PIP) of action to correct the issue and provide for evaluation over the course of a designated time period; explains consequences for failure to improve and/or reoccurrence of conduct after successful conclusion of plan

Provide for employee feedback

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Process Requirements

Documentation and acknowledgement of employee

Consultation between employee, supervisor, manager and human resources

Consequences should be specifically laid out from the beginning to avoid surprises

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This information is provided for informational purposes only. This presentation does not constitute legal advice, nor does it

create an attorney client relationship.

THANK YOU!

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