Presented on May 22, 2018 at 30th Annual Parsons Behle & Latimer Employment Law Seminar - W. Mark Gavre

1. Parsons Behle & Latimer Employment Law Seminar
4812-8652-3489
JOB DESCRIPTIONS:
LEGAL PROTECTIONS AND LEGAL
RISKS FOR EMPLOYERS
W. Mark Gavre
801.536.6834
mgavre@parsonsbehle.com
parsonsbehle.com
TUESDAY, MAY 22, 2018 | THE GRAND AMERICA HOTEL

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 A job description should:
– Work responsibilities and job duties
– Required qualifications
– Expectations
– Help measure performance
– Help manage performance thru goal setting or PIP
– Support decisions to discipline or discharge
– Exempt versus non-exempt
– Help respond to employee demands, requests or criticisms
JOB DESCRIPTIONS CAN HELP

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 Job descriptions may be:
– Out-of-date
– Inaccurate
– Incomplete
– Unclear or ambiguous
– Ignored in practice
 Employee may use job description against management
JOB DESCRIPTIONS CAN HURT

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 Accommodations requested for a disability or religious reason
 An essential function is a fundamental job duty/responsibility:
– The reason the position exists
– Job cannot be done without it
– Few people available to do the task
– Specialized task requiring expertize, training or ability
– Even if not performed frequently, but is important when arises
 Employer NOT required to eliminate or reassign an essential
function (“restructuring” can be required)
ESSENTIAL FUNCTIONS

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 Regular on-time attendance
 In-person work at the office
 Face-to-face interaction with others/teamwork
 Work under stressful conditions/deadlines/time pressures
 Close attention to detail
 Rotating work shifts, weekend work, Irregular schedules
 Long hours/overtime
 Others?
POSSIBLE ESSENTIAL FUNCTIONS

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 Job description (and job
posting/advertisement/application) will not be second
guessed if prepared before hiring begins
– Judicial deference “not absolute,” but substantial
 Tenth Circuit Court of Appeals (covers Utah):
– “Essential functions are the fundamental job duties of the [job]
and we will not second guess the employer’s judgment when
its description [of those duties] is job-related, uniformly
enforced, and consistent with business necessity.”
COURTS DO NOT SECOND GUESS
WRITTEN ESSENTIAL FUNCTIONS

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 ADA requires employer to make “reasonable accommodation”
to “qualified” employee/applicant with a disability.
 A “qualified” employee is one who can perform the “essential
functions” of a job “with or without a reasonable
accommodation”
 Employers often lose where it is a question of whether they
properly engaged in the “interactive process” or “reasonably”
accommodated employee–jury often decides
 Employers win when plaintiff not “qualified”–judge decides
“QUALIFIED” VERSUS “ACCOMMODATE”

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 Faidley worked as package truck driver, making residential
and business deliveries and pick ups
 Faidley suffers two back injuries and hip replacement surgery
 Faidley’s doctor: permanent 8-hour per day work restriction
 Job description: Overtime work an essential function
 Labor agreement: no more than 9.5 hours per day
– Reason: daily workloads can fluctuate unpredictably due to holiday
season and weather
FAIDLEY V. UPS (2018)

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 Consequence of no OT: If driver cannot make all deliveries, other
drivers have to finish job or packages not timely delivered
– Both adversely affect UPS’s business.
 Faidley: I usually finish route in 8 hours, but admits to OT work.
– Court: “A task may be an essential function even if the employee performs
it for only a few minutes a week.”
 Court: OT is essential function based on employer’s judgment,
written job description, labor agreement, and “consequences of
not requiring incumbent to perform the function.”
FAIDLEY (cont.)

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 Restaurant assistant managers must work rotating shifts
– Stated in job description, application and advertisement
 Assistant manager Sepulveda robbed at gunpoint, hit over the
head, and has his car stolen
– Suffers PTSD and major depression disorder
 Sepulveda requests fixed day schedule and transfer to safer area
 Restaurant temporarily accommodates his request, but returns
him to rotating shift. He resigns and sues under ADA
SEPULVEDA V. BURGER KING (2018)

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 Sepulveda claims denied a reasonable accommodation
 Court: Sepulveda not qualified: rejection of rotating shifts
 Employer’s judgment requires rotating shifts, as shown in job
description, application and advertisement
– Current and past assistant managers work rotating shifts
 Consequence of allowing him to work just day shift: other
assistant managers forced to work all unattractive shifts
 Temporary accommodation does not change essential function
SEPULVEDA (cont.)

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 Rite Aid decided to have its pharmacists perform
immunizations
 Rite Aid amended job description to require immunization
training and certification
 Steven’s MD: he is “needle phobic and cannot administer
immunization by injection”
 Court: “When a disability renders a person unable to perform
the essential functions of the job, that disability renders him or
her unqualified.”
STEVENS V. RITE AID (2017)

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 Court: “Once Rite Aid made a business decision to start
requiring pharmacists to perform immunizations, this
became an essential part of the job of a pharmacist.”
 Court: “Courts must give considerable deference to an
employer’s judgment regarding what functions are
essential for service in a particular position,” but:
– Court must make “a fact-specific inquiry” into employer’s job
description and “how the job is actually performed in practice.”
STEVENS (cont.)

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 Winston an administrative assistant at the NWS
 Diagnosed with autoimmune disease, causing poor
concentration and memory, fatigue, digestive problems,
muscle aches, joint pain, depression and frequent illnesses.
 Diagnosed with chronic immune deficiency syndrome.
 Winston’s parents die, has surgery, breaks arm.
 Winston approved for FMLA leave; took 176 hours sick leave
and 268 hours of other leave (including leave donated by co-
workers) in two years.
WINSTON V. NATIONAL WEATHER
SERVICE (2018)

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 Job description: “Attendance at work is an essential function of
your position.”
– Serves as a receptionist and routes telephone calls and visitors.
 Winston asks to telework two days per week—denied.
 Winston asks for intermittent leave when conditions flare up—
denied because unscheduled leave without notice unworkable.
 Court: Leave requests not reasonable because would not enable
Winston “to maintain regular attendance,” an essential function of
the position.
WINSTON (cont.)

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 Arana worked night shift in hospital’s 24-hour call center
– Required to send and receive calls, page doctors, handle
emergency calls for urgent patient care
– Job extremely significant: patients’ lives at stake
 Arana suffers from migraines: sensitive to light and
computers, causing throbbing pain and dizziness; serious
diabetes, causing shakiness, nausea, vomiting, diarrhea,
headaches, and severe pain
 Arana disabled under ADA
ARANA V. TEMPLE UNIV. HEALTH (2018)

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 Arana took informal breaks without finding substitute or left
work early when not feeling well.
 Arana took intermittent FMLA leave (usually with advance
notice)
 On many occasions Arana was late returning from breaks,
one time 40 minutes late when vomiting in bathroom
 On last day Arana did not return from break, found in another
room, slumped in a chair under a blanket with lights off.
 Discharge proper as job abandonment or not qualified
ARANA V. TEMPLE (cont.)

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 TITLE VII can require employer to accommodate employee’s
“sincerely held religious beliefs”
 Similar to ADA
 Requests not to work on employee’s “Sabbath” are common
– Scheduling and shift work should be addressed in job description
– Impact on other employees from requested accommodation
 Conflicts over dress codes and head coverings
 Job descriptions should be reviewed
RELIGIOUS ACCOMMODATION

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 Job description may be relevant to whether employee is
exempt or non-exempt, entitled to overtime or not
 Does job description state that job is exempt?
 Does job description describe exempt work duties?
 Exempt administrative position:
– Non-manual office work directly related to management or general
business operations?
– Does employee exercise discretion and independent judgment on
matters of significance?
WAGE AND HOUR

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 W. Mark Gavre
801.536.6834
mgavre@parsonsbehle.com
Thank You