Managing Performance Using Job Descriptions

PERFORMANCE MANAGEMENT THROUGH JOB DESCRIPTIONS

Donald C. Works, III | Managing Partner (407) 246-8433 | [email protected]

Presented by: Simplifying business. Benefiting people

2013 Webinar Series

November 14, 2013

Managing Partner, Orlando Office Attorney At Law SPHR B.S., Auburn University J.D., University of Miami

Donald C. Works, III

390 North Orange Avenue

Suite 1285

Orlando, Florida 32801-1674

[email protected]

www.jacksonlewis.com

to introduce our esteemed presenter…

is pleased

mailto:[email protected]

http://www.jacksonlewis.com/

PERFORMANCE MANAGEMENT THROUGH

JOB DESCRIPTIONS

How to develop job descriptions

How to use job descriptions in hiring and performance management

How the use of job descriptions throughout the employment relationship can help you in the defense of employment claims

Most Common Employment- Related Claims

o Discrimination Claims –

• Race, color, religion, sex, national origin, age disability, handicap, marital status, sexual orientation, familial status, ancestry, military service, veteran’s status, etc., etc. . . . .

o Retaliation Claims –

• For complaining of discrimination, requesting or taking leave, whistleblowing or filing workers’ compensation claims

Burden-Shifting Analysis

o Applicant Or Employee Proves Prima Facie Case

• I am (insert favorite protected characteristic or activity) and others were treated differently.

o Employer Articulates Nondiscriminatory, Nonretaliatory Reason

o Applicants & Employees Have To Rebut Reason

o Applicants & Employees Have Most Difficulty Rebutting Specific Job-Related Reasons

How To Make Sure You Have Specific, Job Related Reasons For All Actions

o Develop Accurate, Effective Job Descriptions For All Jobs

o Use Job Descriptions In Hiring, Promotions and Transfers

o Use Job Descriptions In Performance Management

o Use Job Descriptions In Firing

o Use Job Descriptions In Defending Claims

Methodology

Observe

Interview

Log

Developing Job Descriptions - Methodology

o Conduct Job Analysis

o Identify Knowledge, Skills & Abilities Required For Success

• Knowledge – Information necessary for task performance

• Skill – Level of competency or proficiency

• Abilities – Required capabilities

Developing Job Descriptions - Methodology

o Job Analysis Methods

• Observation

• Interview

• Open-ended Questionnaire

• Structured Questionnaire

• Work Diary Or Log

What To Include

Job Description

Task

Type of Work

Title

Developing Job Descriptions - What To Include

o Title (realistic & descriptive)

o Reporting Relationships

• Reports To

• Supervises

o Exempt or Non-Exempt Status (FLSA)


o Summary of Job

• Brief Narrative containing information on essential duties, requisite skills and required abilities.

o Objective Qualifications - Required Knowledge, Skills & Abilities


o Other Qualifications

• Ability to safely and successfully perform essential job functions consistent with the ADA, FMLA and other federal, state and local standards, including meeting qualitative and/or quantitative productivity standards

• Ability to maintain reasonably regular, punctual attendance consistent with the ADA, FMLA and other federal, state and local standards

• Compliance with all personnel policies


o Principal Duties, Tasks & Responsibilities

• Examples:

“Keeps the books” v. “Enters revenue and expense transactions and prepares income statements, balance sheets and projected cash flows”

“Handles administrative tasks” v. “Receives, sorts, and files monthly personnel action reports”

“Maintains equipment” v. “Cleans and changes oil in sorting machine on a monthly basis”


o Essential Functions

• Are all employees in the position required to perform the function?

• Did previous employees perform the function?

• Does the position exist to perform the function?

• Would the demands of the business prevent other employees from performing the function if the incumbent could not?

• Does performance of the function require special expertise or skill?


o Essential Functions • Would removing the function from the list of duties

fundamentally alter the position?

• Would failure to perform the function have significant consequences?

• Does the incumbent spend a significant portion of his/her day performing the function?

• Does a collective bargaining agreement require/prohibit performance of the function?

• Do current or past job descriptions list the function as a requirement of the job?


o Working Conditions – describe whether work is performed indoors or outdoors, the type of equipment used, the pace of the job, working relationships required, required nights and weekends

o Salary range and benefits

Hiring, Promotions & Transfers

Use of Job Description

Hire

Promote

Transfer

Use Of Job Descriptions In - Hiring, Promotions & Transfers

o Advertisement or Job Posting Should Mirror Job Description

• For example:

Human Resources Director with 5 to 10 years experience and SPHR certification to direct and manage all human resource functions in a vibrant, fast-paced environment. Salary commensurate with experience. Full benefits.


o Applicants should only be permitted to apply for advertised or posted positions (specific vacancies)

o Attach job description to application to be completed by applicant.

o Question on application: “Are you able to perform the essential functions of the job for which you are applying (see attached job description), with or without accommodation?”


o Only applicants whose applications and/or resumes reflect satisfaction of objective qualifications should be selected for interview

o Interview following job description:

• Describe job to applicant using job summary.

• Confirm applicant’s qualifications:

Education, experience, skills and abilities


o Interview following job description (continued):

• Ask if applicant is able to meet other job qualifications (“opens door” for possible accommodation request/discussion under ADA)

• Review essential functions of the job, noting what education, experience or skills applicant has with respect to each


o Identify and hire applicant who is the most qualified, based on education, experience or skills to perform the essential functions of the job

o Only require post-offer medical examinations if necessary to confirm ability to satisfy qualifications (abilities) and perform essential functions

Performance Management

Use Of Job Descriptions In - Performance Management

o Semi-annual and annual performance evaluations

• Job description is format for the performance evaluation

• Employee should be rated on how well employee performs essential functions of the job

• Comment section may be added following each essential function


o Semi-annual and annual performance evaluations (continued)

• Rate employee on whether employee met other qualifications:

Maintenance of regular, punctual attendance

Compliance with personnel policies


o Progressive Discipline

• Counseling – Should relate to failures to perform essential functions or meet other qualifications

“Mary Smith was counseled regarding her failure to do X (essential job function)”

“Mary Smith was counseled regarding her failure to maintain regular, punctual attendance”

“Mary Smith was counseled regarding her failure to comply with the company’s policy on X”


o Progressive Discipline (continued)

• Verbal and Written Warnings

“John Doe failed to perform X (essential job function); maintain regular, punctual attendance; or, comply with the company’s policy on X”

“John Doe has been counseled previously regarding his failure”

“If John Doe does not improve in his performance of X; improve his attendance; or, fails to comply with the company’s policy on X . . . (describe next step, e.g., he will receive a written warning, he will receive a final written warning, he will be suspended or his employment will be terminated)”

Firing

Use Of Job Descriptions In - Firing

o All terminations should be based on either: • Performance failures; or

• Failure to satisfy other qualifications

Regular, punctual attendance

Compliance with company policies

o Before proceeding: • Review performance evaluations

• Review record of progressive discipline

Counseling

Verbal Warnings

Written Warnings


o The Termination Meeting

• Should not be a surprise (if you have engaged in performance management using job description)

• Have job description on hand and provide a copy to employee

• Review performance evaluations or progressive discipline leading to action


o The Termination Meeting (continued)

• Conclude by citing failure to satisfy part of the job description

Failure to perform an essential function of the job

Failure to satisfy other qualifications (attendance or policy)

• Prepare memorandum documenting meeting

Defending Claims

Use Of Job Descriptions In - Defending Claims

o Responding to Demand Letters & Charges Of Discrimination

• Employment Chronology

Applied for and was hired to perform X job

Provided job description at time of application

Performance evaluations reflect failure to do X

Progressive discipline for failure to do X

Termination for failure to do X

• Same process with demand letters and charges alleging discrimination in hiring, promotion or denial of transfer

• Attach job description, performance evaluations and written warnings and/or memorandum regarding termination as exhibits


o Responding to Lawsuits

• Affirmative defenses should identify the essential function of the job or other qualification which employee failed to perform (in hiring cases, the qualification applicant could not satisfy or essential function applicant could not perform, with or without reasonable accommodation)

• For example, “All actions taken with respect to Plaintiff’s employment were for legitimate, non-discriminatory reasons including Plaintiff’s failure to perform x, an essential function of his job.”


o Responding to Discovery

• Documents produced should include job description and all documents linked thereto (performance evaluations and progressive discipline documentation)

• Answers to interrogatories should focus on and relate back to job description and essential functions or other qualifications Plaintiff failed to perform or satisfy


o Responding to Discovery (continued)

• Deposition testimony should:

relate company’s use of job descriptions throughout employment process;

identify Plaintiff’s failures in relation to performance of essential functions or satisfaction of other qualifications; and

foreclose any possibility action was taken for reason other than one which was job related.


o Use At Trial • HR director should testify as to use of job descriptions

within the company • Job description should be offered and admitted as

evidence • Witnesses should testify as to Plaintiff’s failure perform

essential functions of job or satisfy other qualifications (identifying specific functions, qualifications and failures for the jury)

• Closing argument should focus on company’s use of job descriptions, Plaintiff’s clear understanding of expectations and Plaintiff’s failures to satisfy requirements of the job

Try It, You’ll Like It!

Presented by:

2013 Webinar Series

Questions?

Donald C. Works, III | Managing Partner (407) 246-8433 | [email protected]

Presented by:

Simplifying business. Benefiting people

2013 Webinar Series

Contact Us !

[email protected] 888-335-9545 (Option 8)

Donald C. Works, III

Attorney At Law

Managing Partner, Orlando Office

390 North Orange Avenue, Ste. 1285

Orlando, Florida 32801

(407) 246-8433

[email protected]

mailto:[email protected]

Upcoming AlphaStaff Webinar:

Year End Process


Please mark your calendars !!!

Thursday, December 19, 2013

Thank you for your participation!


Managing Performance Using Job Descriptions

Technology

Transcript of Managing Performance Using Job Descriptions