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.

1. 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

2. 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

3. 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

4. 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

5. 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

6. 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

7. Methodology
Log
Interview
Observe

8. 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

9. Developing Job Descriptions Methodology
o Job Analysis Methods
•
•
•
•
•
Observation
Interview
Open-ended Questionnaire
Structured Questionnaire
Work Diary Or Log

10. What To Include
Type of
Work
Title
Task
Job Description

11. Developing Job Descriptions What To Include
o Title (realistic & descriptive)
o Reporting Relationships
• Reports To
• Supervises
o Exempt or Non-Exempt Status (FLSA)

12. 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

13. 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

14. 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”

15. 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?

16. 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?

17. 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

18. Hiring, Promotions & Transfers
Transfer
Hire
Use of Job
Description
Promote

19. 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.

20. 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?”

21. 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

22. 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

23. 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

24. Performance Management

25. 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

26. 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

27. 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”

28. 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)”

29. Firing

30. 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

31. 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

32. 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

33. Defending Claims

34. 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

35. 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.”

36. 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

37. 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.

38. 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

39. Try It, You’ll Like It!
Presented by:
2013 Webinar Series

40. Questions?
Presented by:
Donald C. Works, III | Managing Partner
(407) 246-8433 | worksd@jacksonlewis.com
Simplifying business. Benefiting people
2013 Webinar Series

41. 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

42. Upcoming AlphaStaff Webinar:
Year End Process
Please mark your calendars !!!
Thursday, December 19, 2013
Simplifying business. Benefiting people

43. Thank you for your participation!
Simplifying business. Benefiting people