JOB DESCRIPTIONS: A Key HR Tool Presented by: Trisha Gibo, Esq. Shareen Poynter Arlene Odagiri July 2017

What’s in your Tool Kit?

DISCLAIMER This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult and attorney if you have specific legal issues.

Overview Why job descriptions? Why are they important? What must job descriptions contain? Creating a job description How to use a job description Keeping job descriptions current Check your Tool Kit

Why job descriptions No State or Federal law states a job description is required, but . . . Difficult for employers to defend employment decisions without one. Proving employment decisions are based on “bona fide occupational qualifications” and/or “legitimate, nondiscriminatory business reasons.” ADA requires employers to provide “reasonable accommodation” to enable disabled individuals to perform their essential job functions. Hawaii: Accommodation process cannot be accomplished without a written job description. Since the enactment of federal and state discrimination laws, it has become increasingly difficult for employers to defend employment decisions. Juries do not believe employers absent written proof that the employment decisions are based on "bona fide occupational qualifications" and/or "legitimate, nondiscriminatory business reasons." The adoption of the ADA has further complicated the situation by requiring employers to provide "reasonable accommodation" to enable disabled individuals to perform their essential job functions. Under Hawaii's disability discrimination regulations, this accommodation process cannot be accomplished without a written job description.

Why are they important? Describes purpose of the job Documents legitimate business reasons Required for medical examinations Describes legitimate minimum qualifications

Why are they important? Describes purpose of the job Helps identify the right candidate for the job Helps identify the skills or abilities needed for the position and conditions that apply to the position Tells the applicant what the position may involve or require An applicant may decide if they are a good fit or not If the application is withdrawn, no liability for “adverse action”

Why are they important? Documents legitimate business reasons Job descriptions serve as a starting point for essential job duties Applicant or employee can identify and determine their “fit” Job descriptions can help with the interactive process to meet State/Federal law requirements for reasonable accommodations for qualified individuals

Why are they important? Required for Medical Examinations Job descriptions can also be helpful in soliciting advice of professionals such as physicians, chiropractors, counselors or rehabilitation therapists to determine if an employee can perform tasks for a particular job

Why are they important? Describes legitimate minimum qualifications Should specify if particular certifications are required Particular degree, or Professional designation Company culture Fit for department Supports values

What must job descriptions contain? Essential job functions Physical requirements of the job Mental requirements of the job Education, work experience and/or skill requirements for the job Equipment that will be used Work environment

Use of job analysis to create job descriptions Job analysis is used to identify knowledge, skills and expertise required to effectively perform: Job assignments Establish criteria for selection and promotions Design objectives for training and development programs Develop standards for measurement of performance Assist with determination of pay classification levels

Creating job descriptions What to include in a job description: Title FLSA status Essential functions Physical and mental demands Skills and qualifications Work environment Disclaimer

Creating job descriptions Assign a job title to the position Use a title that describes the basic function of the position in your company (e.g., receptionist, secretary, accounting manager). Remember, however, that a job description should describe the duties that must be performed by anyone who holds the position, not the duties performed by a particular person. Answers a business need — and is not made-to-order for a specific individual!

Exempt or Non-Exempt If notation of Exempt or Non-Exempt is stated, elements of applicable exemption must be present in the job description Determine if position is Exempt or Non-Exempt based on FLSA criteria To be exempt from minimum wage, timekeeping and overtime requirements: Example: Executive exemption State the position (1) manages a “recognized department or subdivision of the company” and (2) regularly supervises at least 2 or more full-time equivalent employees every week. Also, reference to other managerial duties should be made in the job description.

Exempt or Non-Exempt To be exempt from minimum wage, timekeeping and overtime requirements: Example: Administrative exemption State the position “regularly exercises independent judgement and discretion about matters of significance.” Use specific words to describe that involve independent judgement and discretion, such as “negotiates” or “decides.”

Creating job descriptions Job duties Determines who is responsible for a given task that is essential to the organization Prepare written job descriptions Make them comprehensive Make them accurate Make them useful

Creating job descriptions List the essential functions of the job The essential functions of a job include the duties which are: the reason the position was created; regularly performed by the person who holds the position; and/or a significant percentage of all the duties performed by the employee. Use specific and descriptive phrases rather than general language. For example: General statement: “responsible for repair of computer equipment” More precise and descriptive: “contacts computer service repair companies and coordinates repairs of computer equipment” Seek input from employees as well as supervisors to ensure that the duties listed on the job description are actually performed by the incumbent employees in the position.

Establishing essential job functions Factors that may be considered: Whether the position exists to perform a particular function; The number of other employees available to perform that job function, or the number of employees among whom the performance of the job function can be distributed; The degree of expertise or skill required to perform the function; The amount of time spent performing the function; The terms of a collective bargaining agreement; The work experience of incumbents or past employees in the job; The consequences of not requiring the incumbent to perform the function; and The employer's judgment.

Creating job descriptions Describe the physical and mental requirements of each job To minimize the risks of disability discrimination claims, these physical and mental functions must be listed on the job description. Review the EEOC’s regulations and guidelines on "disability" for ideas on the types of physical and mental functions that should be addressed in a job description. Each job requires an employee to be able to perform certain physical functions. Examples: sitting, walking, lifting, eye-hand coordination Each job requires an employee to be able to perform certain mental functions Examples: reading, verbal or written communication, math calculations, withstanding moderate amounts of stress, attention to detail, working with others

Creating job descriptions List any special requirements for the job Special requirements should be listed on the job description. For example: Educational degrees Professional licenses Work experience, and/or specialized skills. Required certification such as: Commercial driver’s license Specialized degree, or Professional designation Required specific computer programs or systems

Creating job descriptions Include descriptions of work environment and equipment Description of the work environment. For example: Information on whether the person will work indoors or outdoors, In heat or cold, or In clean or dirty, or In hazardous conditions. Description of equipment. For example: Computers Telephones Copy machines Operate a vehicle (i.e., forklift, machinery) Provides applicants and employees with a more "concrete" understanding of what they will be expected to do.

Creating job descriptions List required work habits Work habits include regular attendance, teamwork, initiative, dependability, promptness, etc. If it is important for an employee to have one or more of these work habits in order to perform the job, then they should be listed on the job description as well. Examples: Must be able to work collaboratively with others in an open space environment. Must be able to work independently with limited direction and human interaction. Must be able to manage and complete multiple tasks within assigned working hours.

Creating job descriptions Include a summary of non-essential functions Non-essential functions are those tasks an employee must be able to perform occasionally or on an intermittent, non-regular basis. In this section the EEOC suggests you can require an employee to "perform any other duties and/or tasks that may be assigned to him/her on an as needed basis."

Creating job descriptions Include a disclaimer, if appropriate Many employers are reluctant to adopt job descriptions for fear that employees will treat such documents as employment agreements. A disclaimer, clearly and conspicuously set forth in the job description, should counter any attempt by an employee to claim the job description is a contract. Include the following language at the bottom of the job description: “This job description is not an employment agreement or contract. Management has the exclusive right to alter this job description at any time without notice.”

Creating Job Descriptions Resources to help you prepare job descriptions Business or professional organizations www.shrm.org www.shrmhawaii.org Government websites (Dictionary of Occupational Titles) Consultants (SHRM Hawaii Vendor Directory) Ask your HR friends

Using job descriptions How do you use job descriptions? Guide your questions when recruiting & selecting new employees Focus training & performance evaluations Determine compensation levels & appropriateness of rewards Determine whether discipline and/or discharge is appropriate Job Descriptions Recruitment & Selection Training & Evaluation Compensation & Rewards Discipline & Discharge

Using job descriptions Other benefits of job descriptions: Focuses decision-making for managers and supervisors Communicates job requirements to employees Provides documentation for your legitimate, non-discriminatory business reasons

Using job descriptions Supports an HR strategy and a company-wide strategy If your job descriptions are done carefully and thoroughly, you should be able to use them to organize your entire human resources system. Employees should be hired, trained, evaluated, compensation, promoted, counseled, disciplined, and/or terminated on the basis of their ability to meet and perform the requirements listed on the job description. Job descriptions become valuable evidence which can be used to corroborate management's decisions. Again, essential tool to select and retain the right employees for the Company.

Using job descriptions Termination Discipline Promotion Evaluation Compensation Assignments Training Hiring Job Description

Establish a process to keep job descriptions current Opportunities to review: When an employee leaves the Company Hiring for same position or new or change Elimination of position – affect on other positions When it is time for performance reviews When it is time for compensation reviews Creation of a new position or operational change

Check your tool kit ___ Review your process of hiring new employees or filling a newly created position. Is there a current, realistic, and useful job description (JD)? ____ Does the JD need to be updated? ____ Which JD does not exist and needs to be created? ____ Is the JD reviewed prior to recruiting for an open position? ____ Are interview questions aligned with the JD? ____ Is the JD part of the performance review? Part of training and development programs? Part of the compensation plan? It is not just about having a “tool.” It is all about having the right tool and using it!

Questions? Thank you for your time and interest !