©2013 bose mckinney & evans llp fundamentals of human resources jonathan l. mayes, esq. and...
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©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
©2013 Bose McKinney & Evans LLP
Job Descriptions
What You Need to Know About Job Descriptions
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©2013 Bose McKinney & Evans LLP
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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Job Descriptions, cont.
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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©2013 Bose McKinney & Evans LLP
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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Employee Manuals, cont.
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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Employee Manuals, cont.
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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Employee Manuals, cont.
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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Employee Manuals, cont.
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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Employee Manuals, cont.
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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Employee Manuals, cont.
Technology
Computer Use, including internet and e-mail
Cell Phones/Texting
Social Media
Workplace Monitoring
Confidentiality of Library Information
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Employee Manuals, cont.
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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Employee Manuals, cont.
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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Employee Manuals, cont.
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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Employee Coaching and Discipline, Cont.
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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Employee Coaching and Discipline, Cont.
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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Employee Coaching and Discipline, Cont.
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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Employee Coaching and Discipline, Cont.
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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Employee Coaching and Discipline, Cont.
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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Employee Coaching and Discipline, Cont.
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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Employee Coaching and Discipline, Cont.
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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Employee Coaching and Discipline, Cont.
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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©2013 Bose McKinney & Evans LLP
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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