Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Attention: Have you taken the HR4U mini-Human Resources audit, yet?

 

Disabilities and Written Job Descriptions

Most, human resources professionals and employment attorneys, along with supervisors who deal with employee requests for accommodations or work restrictions, have long realized the value and importance of written job descriptions. When determining whether an employee can perform the essential functions of a particular job, having a written job description can make the difference between winning and losing a lawsuit. This even more true today with the “enhancements” made to the ADA in 2009.

 

To show that an employee was qualified to perform a particular job, an employee must be able to demonstrate that he or she had the requisite skill, experience, education, and other job-related requirements for the position and would have been able to perform the essential functions of the position with or without reasonable accommodation.

 

In the case of Richardson v. Friendly Ice Cream, Katharine Richardson held the position of assistant manager at a Friendly's. Several years into her employment, she developed shoulder impingement syndrome, which caused her pain when she operated the grill or scooped ice cream. At first, her job duties were modified, eventually she went out on leave. Upon her return to work, her doctor issued her a work release that prohibited her from performing repetitive activity with her right arm and lifting objects weighing more than five pounds. Friendly then terminated her employment.

 

In her subsequent lawsuit, Richardson claimed that her sole essential job function was to oversee the operation of the restaurant and ensure that it ran smoothly. Friendly stated that essential functions of her assistant manager position required her to be able to perform manual tasks, such as assisting in food preparation, delivering food to customers, and performing general housekeeping duties. In doing so, it relied heavily on the written job description.

 

Under a section titled "Essential Functions," several job duties were listed one of which stated that she must be able to run shifts and direct and assist in the kitchen. Under a physical requirements section, it stated; physically assisting and performing kitchen, dining, and take-out operations; cooking food items on a grill; delivering prepared meals, beverages, and dessert items to customers; cleaning and resetting tables; loading and operating the dishwasher; and performing general housekeeping duties.

 

Based in large part on the job description, the court agreed with Friendly that the assistant manager position had a substantial physical component and granted summary judgment in favor of Friendly. Even though the plaintiff always has the ultimate burden of proving that he or she is a qualified individual, it is the employer's burden to come forward with some evidence that a particular function is essential.

 

When drafting the essential function portion of the job description, consider the following:

• Include the approximate amount of time the employee will spend on the job performing certain functions.
• If a position requires repetitive motions, use the word "repetitive."
• Be specific regarding lifting and other physical requirements.
• Human resources should work with front-line supervisors to ensure that the job description accurately reflects the actual tasks being performed. An inaccurate job description may be worse than having no job description at all.
• Periodically update. Job duties can naturally evolve over time, as business needs change.

Having complete and thorough job descriptions may be the key to defending against disability litigation. You should make this task a priority, because the relatively small investment of time and resources now could pay dividends in the form of avoided liability in the long run.

 

Menorah House Settles EEOC Religious Discrimination Lawsuits

 A Boca Raton nursing and rehabilitation facility will pay $125,000 to settle two religious discrimination lawsuits brought by the EEOC. The EEOC’s suit charged that Boca Group LLC, doing business as Menorah House, denied a religious accommodation to two certified nursing assistants who were Seventh-Day Adventists and fired them because of their religious beliefs. Menorah House had accommodated the two women’s religious needs for at least eight years, until management instituted a policy requiring all employees to work on Saturdays, regardless of their religious beliefs.

 

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination and requires employers to make reasonable accommodations to employees’ sincerely held religious beliefs so long as this does not pose an undue hardship. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

 

In the consent decree settling the lawsuit  Menorah House agreed to revise its written discrimination policies with respect to religious discrimination and to post anti-discrimination notices at all of its facilities. In addition, Menorah House will conduct anti-discrimination training to all employees, including managers, supervisors and human resources personnel, with an emphasis on accommodating religion in the workplace.

 

Growing Trend in Vacation Policy: Open-ended vacations

• Take as much time off as you want.
• No tracking or limiting of vacation time
• Goal: lower employee stress, reduce turnover, increase productivity
• It is a “results only work environment”
• Only 3% of employers have it.
• Some companies that have it: Netflix, Evernote, Xobni, Hotel Tonight

One interesting insight: some people started taking less time off! Evernote finally decided to offer employees $1000 check for anyone taking a weeklong trip.