Make Job Descriptions ADA- Ready: California HR s How-To for Defining Essential Functions

Transcription

1 Make Job Descriptions ADA- Ready: California HR s How-To for Defining Essential Functions Presented by: Michelle Lee Flores and Tamara L. Devitt Fisher & Phillips LLP Monday, July 30, :30 a.m. to 12:00 p.m. Pacific or For CD and other purchasing information, contact customer service at: or custserv@blr.com This program also approved for MCLE recertification credit. This program has been approved for 1.5 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). This program is also a California-specific continuing education activity for PHR-CA and SPHR-CA recertification. The Program ID number will be ed to the registered participant at the completion of the conference. For more information about certification or recertification, please visit the HRCI website at

2 Make Job Descriptions ADA Ready: California HR s How To for Defining Essential Functions Presented by: Michelle Lee Flores, Esq. & Tamara I. Devitt, Esq. Fisher & Phillips LLP July 30, 2012 WHY DO WE CARE? Not required by law But Manage expectations of what is essential for the job Employer Employee Direct supervisor Applicants Physicians 2

3 BUT WHY DO WE REALLY CARE? Lawsuits! Ability for person with disability to perform the job Defense to claims of discrimination The ADA and California s FEHA Bottom Line: Treacherous waters 3 OVERVIEW The law Essential functions Critical components to every job description Key things to remember Use of job descriptions Critical factors for exempt & nonexempt 4

4 THE LAW ADA FEHA Others EPA Title VII OSHA ADEA 5 ESSENTIAL FUNCTIONS CA Govt. Code 12926(f) A job function is essential, including but not limited to, if: It constitutes the job s fundamental duties or The job exists to perform that function or There are a limited number of employees to whom performance can be distributed or It is a highly specialized function 6

5 EVIDENCE OF ESSENTIAL FUNCTIONS CA Govt. Code 12926(f)(2) EEOC has same considerations The employer's judgment as to which functions are essential Written job descriptions prepared before advertising or interviewing applicants for the job The amount of time spent on the job performing the function The consequences of not requiring the incumbent to perform the function The terms of a collective bargaining agreement The work experiences of past incumbents in the job The current work experience of incumbents in similar jobs 7 CRITICAL COMPONENTS & CONSIDERATIONS Title Department Supervision/reporting structure Management Immediate supervisor Indirect Classification Exempt or nonexempt status Strategic decision to include (or not) Overview/summary of position 8

6 CRITICAL COMPONENTS (cont d) Essential functions Those that must be performed Day to day basis Irregular but recurring and of an essential nature Use Active words/verbs in describing Use present tense & third person Describe the frequency in which the function is performed O*NET DOL s Employment and Training Administration online.onetcenter.org Savings clause Perform other related duties as assigned 9 CRITICAL COMPONENTS (cont d) Additional responsibilities Nonessential or marginal Important for expectations Physical requirements Both sedentary and non sedentary Physical activity Degree of strength, flexibility and agility Duration and frequency of effort exerted occasionally; frequently; constantly 10

7 CRITICAL COMPONENTS (cont d) Knowledge, skill & experience Minimum education Minimum experience Skills Required specialized skills Financial responsibility & authority Equipment Financial Internal & external business contacts Supervisory 11 ALWAYS REMEMBER Be sure to accurately describe the job Include all critical elements Establish a plan of action for your program Consistent formatting is critical Use and update job descriptions 12

8 USE OF JOB DESCRIPTIONS Assist with job posting Assist with interview process Job application Interview questions Assist with performance evaluations Introductory period Yearly As needed Assist with compensation Defense of lawsuits Misclassification Discrimination 13 Questions? Michelle Lee Flores Tamara I. Devitt (213) (213) Fisher & Phillips LLP Solutions at Work Disclaimer: The foregoing is not legal advice but is provided as a general overview. You should consult with counsel concerning the applicability of any law to your particular situation Fisher & Phillips LLP. All rights reserved. No reproduction without permission. 14

9 Disclaimers *This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action. California Employer Resources is an approved MCLE Multiple Activity Provider, and this program has been approved for 1.5 hours of MCLE credit by the State Bar of California. For more information, please contact our customer service department at (800) The HRCI Program ID is: This program has been approved for 1.5 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). This program is also a California specific continuing education activity for PHR CA and SPHR CA recertification. The Program ID number will be ed to the registered participant at the completion of the conference. For more information about certification or recertification, please visit the HRCI website at

10 Speaker Biography Michelle Lee Flores Attorney Michelle Lee Flores is a partner in the Los Angeles office of Fisher & Phillips LLP. She focuses her practice on all aspects of employment litigation, including jury and bench trials, arbitration, mediation and prelitigation negotiations, wage and hour violations, and wrongful termination. Ms. Flores also advises clients on employment compliance, internal investigations, discipline, terminations, reductions in force, and wage and hour matters. Tamara L. Devitt Attorney Tamara I. Devitt is the managing partner in the Los Angeles office of Fisher & Phillips LLP. Her practice focuses on representing employers against claims of discrimination, unlawful harassment, wrongful termination, unfair business practices, and wage and hour-related issues. Ms. Devitt represents employers before state and federal courts and administrative agencies, including the California Department of Fair Employment and Housing, and the Equal Employment Opportunity Commission.