Monday, October 23, 2017
 

What is Essential? The Madness of Maintaining Job Descriptions Under the DOL

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Business meetingBy Nancy Bourque
HR Director / Practice Leader at
United Benefit Advisors

Your new position just got approved and, finally, that mission-critical headcount addition is green-lighted. Celebration ensues until the actual work of finding the ideal candidate begins. The first step is to get a job description. In some cases, a perfectly vetted position analysis and description may exist, one that captures the particulars and purpose of the job. For those not fortunate enough to have a compensation professional providing such information, the search to find the right words to describe the work begins. So launches the journey of a thousand words cut-and-pasted from Indeed.com.

The recent changes to the Department of Labor (DOL) overtime rules, which will impact an estimated 4.2 million workers, put the spotlight back on job descriptions, or more specifically, the content of those documents as businesses are forced to assess whether their employees meet the duties test for exemption. This was not the first time in recent years that the DOL has focused on essential job functions. The 25th anniversary of the Americans with Disabilities Act (ADA) brought additional entitlements to individuals, including extending accommodation to pregnant workers and tagging onto Family and Medical Leave Act (FMLA) time off with allowances for extended ADA leaves. All of these changes rely on documentation of essential job functions and the conditions under which they are performed.

Since the enactment of the ADA, most employers have been incorporating physical requirements into position descriptions. If, however, the level of detail is lacking, the accommodation process can be derailed. Consider:

  • the frequency of physical requirements, not just the weight lifted, and
  • the percentage of time spent standing, sitting, bending, or moving and the level of repetition in the performance of duties.

Exempt (white collar) jobs require unique differentiators, including stamina requirements such as:

  • Longer hours and extended work weeks
  • Percentage of time spent travelling
  • Specific credentials (i.e. CPAs)

Additionally, if there are environmental or psychological requirements applicants must meet, these should be included in the job description.

The ADA views essential job duties through the lens of the ability to perform with or without accommodation, thus taking a broad view of the scope of work. Hence, it may be incumbent on an employer to reassign duties, restrict tasks or change responsibilities in order to accommodate an individual. This can create difficulties when trying to comply with the Fair Labor Standards Act (FLSA).

For example, to be considered exempt under the executive duties test within the FLSA, the employee must:

  • regularly supervise two or more other employees, and
  • have management as the primary duty of the position, and
  • have some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).

The regulations call out specific management duties including training, appraising productivity, monitoring work, and, in general, being “in charge.” In the event that such a manager required accommodation under the ADA, it is possible that in order to comply with the letter of the law, the removal of responsibilities might result in a situation where the individual is no longer meeting the duties requirement to be considered exempt. In this scenario, it might be advisable, for example, to include language in the job description that establishes presence at work as an essential function of management.

This is not a call to front load the descriptions with an overflow of detail. It is, however, important to ensure that the job description reflects the actual functions and outcomes needed and the conditions that impact those processes. It requires careful consideration and a comprehensive needs analysis.

Free resources for detailed information about jobs include the Bureau of Labor Statistics Occupational Outlook Handbook (www.bls.gov) and O*Net OnLine (www.onetonline.org). Both sites are maintained by the U.S. Department of Labor and have substantial databases of job information that represents thousands of employers nationally, providing evidentiary support for the inclusion of essential job functions in a position description.

The following is a reference chart illustrating the importance of job descriptions under each employment law.

Employment
Law
Impact of the Job Description
Fair Labor Standards
Act (FLSA)

The FLSA looks to the content of a job to as a source of information to complete a duties test to ascertain the exempt or non-exempt status of positions.

A job description is not a stand-alone validation of status, but an accurate list of essential functions can go a long way in confirming an employee’s exempt status.

Americans with Disabilities
Act and Pregnancy
Discrimination Act

Detailed job descriptions outline the requirements for a candidate to be considered “qualified.” An employer is not obligated to accommodate an applicant who cannot meet the legitimate skills, experience, education, or other requirements of a position. Pregnancy is treated the same as any other disability.

Undertaking an interactive dialog with a qualified individual depends on well-defined documentation that articulates the tasks, outcomes and the conditions under which the work is performed.

Employers may need to offer employees alternative positions as an accommodation. As new or existing jobs open, they should be reviewed to ensure the credentials needed are current and viable.
Family and Medical
Leave Act (FMLA)

In lieu of a job description, medical providers rely on employees’ characterization of their work. This can be misleading and cause the provider to miss critical information.

Employees who request intermittent leave for a serious health condition could potentially be given temporary job modifications if medical restrictions were more clearly aligned with essential job functions.

Return to work clearances may be compromised if medical providers are not given detailed information about job requirements.
Occupational Health Act

Employers lower their experience rating when they are able to implement a robust light duty return to work program. This requires explicit environmental, physical and emotional details in job descriptions.

Accurate credentialing and experience requirements outlined in job descriptions can alleviate accidents and injuries from unqualified workers.
 Title VII, including Age
Discrimination in
Employment

Title VII requires that consideration for hiring and compensation, be based on bona fide job requirements. Accurate, impartial recaps of work requirements can serve as a defense against allegations of bias.

Employee performance, which impacts discipline, promotion and opportunities for advancement should be measured against the road map of a comprehensive job description that is measurable and defendable.

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