Law Sections

A Lesson About Job Descriptions

Having Thorough, Detailed Documents Is a Must for Employers

By SUSAN G. FENTIN, Esq.

Is one of your New Year’s resolutions to work on your company’s job descriptions? If so, make this an early priority in 2015.

SUSAN G. FENTIN

Susan G. Fentin

Job descriptions are one of the five documents that are guaranteed to show up in employment litigation. Full and accurate job descriptions can make the difference between winning and losing claims filed by employees under a multitude of state and federal statutes, including discrimination claims under the Americans with Disabilities Act, Title VII, the Equal Pay Act, the Fair Labor Standards Act, and parallel Massachusetts law.

The New Year is a great time to tackle this job. This review is especially important if it’s been several years since you last conducted a full review. Frequently, job duties change over time: new tasks are added, and duties that previously were assigned to a particular worker might no longer be necessary or not performed in the same way. Employees who were originally considered exempt may have had responsibilities removed from their job duties, which might lead to questions as to whether the employee is still properly classified.

If an employee should have been paid on an hourly basis and worked substantial overtime, there could be a basis for large damages under Massachusetts wage-hour law. In addition, a good job description clearly communicates the company direction and where the particular position fits in the big picture. It describes the major areas of an employee’s job, sets out clear expectations for performance, and provides a reference point for compensation decisions. Carefully drafted job descriptions help attract the right candidate for the position and give supervisors the documentation they need to support decisions such as performance evaluations and promotions.

Complete and accurate job descriptions that include all the essential functions of a position and the physical requirements of the job have become especially significant since the amendments to the ADA were passed in 2008. As a result of those amendments, more and more employees are able to claim that they are disabled in some way, leading to an increase in claims of disability discrimination and failure to accommodate.

However, employers who develop full and accurate job descriptions have an easier time beating disability-discrimination claims, as the Friendly restaurant chain demonstrated in a 2010 case that went all the way up to the First Circuit Court of Appeals.

Friendly’s hired Katharine Richardson as assistant manager at its Ellsworth, Maine, restaurant. In addition to administrative tasks, Richardson was expected to work the grill, cook French fries in a deep fryer, scoop ice cream, lift heavy bags of trash, mop the floor, wait on and bus tables, and unload delivery trucks.

In January 2007, Richardson began to experience severe shoulder pain. For the next nine months, she did her best to do her job by changing the way she performed her duties: she cooked French fries in smaller batches and used tongs, since she couldn’t lift the basket from the fryer, and she delegated many other tasks, such as mopping the floor and taking out the trash.

In September 2006, Richardson took FMLA leave for shoulder surgery. She expected to return to work in October, but her surgeon did not release her to return to work until January 2007. Friendly’s extended her leave of absence, but when she finally returned to work, she had severe, permanent restrictions on lifting anything that weighed more than five pounds and performing repetitive activity. Since Richardson’s limitations meant she was unable to perform most of the manual tasks required of assistant general managers, Friendly’s terminated her from employment.

Predictably, Richardson sued. Friendly’s defense was that she was not a ‘qualified individual’ entitled to the protections of the ADA, since she was not able to perform the essential functions of her position with or without an accommodation. The U.S. Court of Appeals for the First Circuit took up the case to decide whether Friendly’s had discriminated against Richardson and/or failed to accommodate her disability. After all, Richardson argued, the restaurant chain had been able to accommodate her for quite some time by allowing her to assign many of her lifting tasks to other employees.

The court reviewed EEOC regulations governing ‘essential functions’: does the position exist for the purpose of performing the function? How many employees could perform the function? Is the function highly specialized? Was the employee hired for her expertise or ability to perform it? The court also considered other factors, including the employer’s judgment concerning essential functions, written job descriptions, the time spent performing the function, the consequence of not requiring the employee to perform the function, any applicable collective bargaining agreement, and the work experience of past and current employees in similar positions. The court noted that substantial weight is given to the employer’s view of what functions of the job are essential, particularly when articulated in a written job description.

Richardson claimed that, as an assistant manager, her only truly essential job function was to oversee the smooth operation of the restaurant. However, Friendly’s relied heavily on its six-page, written job description for the position, which specified essential functions and specific, physical requirements of the position.

Indeed, Richardson conceded that part of her job was to be able to fill in for any employee in the restaurant when needed, and she described in detail the duties she was required to perform. The First Circuit came to the conclusion that Richardson’s manual duties were essential to her position, and that, since she was not able to perform them, she was not a qualified individual under the ADA.

Clearly, a carefully drafted job description that includes all the physical requirements of a position and delineates essential functions can make the difference between winning and losing a charge of disability discrimination. And, as we’ve explained above, there are many other ways in which full and accurate job descriptions can make a big difference in managing your employees.

If you need assistance identifying essential functions or developing an accurate list of the physical requirements of your position, contact your labor and employment counsel. But be sure to put this on your list of new year’s resolutions for January 2015.

Attorney Susan G. Fentin has been a partner at Springfield-based Skoler, Abbott & Presser since 2004. Her practice concentrates on labor and employment counseling, advising large and small employers on their responsibilities and obligations under state and federal employment laws, and representing employers before state and federal agencies and in court. She speaks frequently to employer groups, conducts training on avoiding problems in employment law, and teaches master classes on both the FMLA and ADA; (413) 737-4753; [email protected]

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