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Managing Performance Using Job Descriptions
 

Managing Performance Using Job Descriptions

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Job descriptions are an essential tool for every employer. They can and should be used in all aspects of the employment relationship, including recruiting, hiring, performance management, discipline ...

Job descriptions are an essential tool for every employer. They can and should be used in all aspects of the employment relationship, including recruiting, hiring, performance management, discipline and separation. Doing so improves morale and helps employers defend discrimination, retaliation and other legal claims.

Presented by Jackson Lewis.

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    Managing Performance Using Job Descriptions Managing Performance Using Job Descriptions Presentation Transcript

    • PERFORMANCE MANAGEMENT THROUGH JOB DESCRIPTIONS Presented by: Simplifying business. Benefiting people 2013 Webinar Series Donald C. Works, III | Managing Partner (407) 246-8433 | worksd@jacksonlewis.com November 14, 2013
    • is pleased to introduce our esteemed presenter… Donald C. Works, III 390 North Orange Avenue Suite 1285 Orlando, Florida 32801-1674 worksd@jacksonlewis.com www.jacksonlewis.com Managing Partner, Orlando Office Attorney At Law SPHR B.S., Auburn University J.D., University of Miami
    • 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 EmploymentRelated 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 Log Interview Observe
    • 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 Type of Work Title Task Job Description
    • Developing Job Descriptions What To Include o Title (realistic & descriptive) o Reporting Relationships • Reports To • Supervises o Exempt or Non-Exempt Status (FLSA)
    • Developing Job Descriptions What To Include o Summary of Job • Brief Narrative containing information on essential duties, requisite skills and required abilities. o Objective Qualifications - Required Knowledge, Skills & Abilities
    • Developing Job Descriptions What To Include 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
    • Developing Job Descriptions What To Include 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”
    • Developing Job Descriptions What To Include 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?
    • Developing Job Descriptions What To Include 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?
    • Developing Job Descriptions What To Include 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 Transfer Hire Use of Job Description Promote
    • 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.
    • Use Of Job Descriptions In Hiring, Promotions & Transfers 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?”
    • Use Of Job Descriptions In Hiring, Promotions & Transfers 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
    • Use Of Job Descriptions In Hiring, Promotions & Transfers 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
    • Use Of Job Descriptions In Hiring, Promotions & Transfers 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
    • Use Of Job Descriptions In Performance Management 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
    • Use Of Job Descriptions In Performance Management 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”
    • Use Of Job Descriptions In Performance Management 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
    • Use Of Job Descriptions In Firing 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
    • Use Of Job Descriptions In Firing 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
    • Use Of Job Descriptions In Defending Claims 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.”
    • Use Of Job Descriptions In Defending Claims 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
    • Use Of Job Descriptions In Defending Claims 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.
    • Use Of Job Descriptions In Defending Claims 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? Presented by: Donald C. Works, III | Managing Partner (407) 246-8433 | worksd@jacksonlewis.com Simplifying business. Benefiting people 2013 Webinar Series
    • Contact Us ! hrsc@alphstaff.com 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 worksd@jacksonlewis.com
    • Upcoming AlphaStaff Webinar: Year End Process Please mark your calendars !!! Thursday, December 19, 2013 Simplifying business. Benefiting people
    • Thank you for your participation! Simplifying business. Benefiting people