Presented at the 2018 Parsons Behle & Latimer Idaho Employment Law Seminar - October 9, 2018 - Boise, Idaho

1. Parsons Behle & Latimer Idaho Employment Law Seminar
JOB DESCRIPTIONS:
LEGAL PROTECTIONS AND LEGAL
RISKS FOR EMPLOYERS
Kelsie A. Kirkham
208.528.5234
kkirkham@parsonsbehle.com
parsonsbehle.com
TUESDAY, OCTOBER 9, 2018 | BOISE CENTRE EAST

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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– Out-of-date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
 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)
ADA – 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 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 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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 Morin assistant manager in store meat department
 Morin has chronic Lyme disease, causing fatigue, dizziness and
pain that worsens later in the day
 Standard company schedule requires late work (7:00 pm) at least
one day a week
 Morin asks for schedule ending at 2:30 pm
 Company rejects request as “unreasonable,” arguing that keeping
to standard schedule “essential” to the job
MORIN V. HANNAFORD BROS. (2018)

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 Morin had been working schedule ending at 1:30 or 2:30 most
days for five years
– Morin received positive performance evaluations and four bonuses
– Department performed well by company metrics
 Court: Company not shown that adhering to standard work
schedule was an essential function because (a) no schedule
requirement in job description, (b) Morin did not follow standard
schedule for years, (c) Morin received good performance
evaluations, and (d) department produced good results.
MORIN (cont.)

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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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 Kelsie A. Kirkham
208.528.5234
kkirkham@parsonsbehle.com
Thank You