FUNDAMENTALS OF HUMAN RESOURCES

1. FUNDAMENTALS OF HUMAN RESOURCES Jonathan L. Mayes, Esq. and Jeffery Halbert, Esq. Bose McKinney & Evans LLP 111 Monument Circle, Suite 2700 Indianapolis, IN 46204 317.684.5000 October 8, 2014

2. Job Descriptions What You Need to Know About Job Descriptions *

3. Job Descriptions • Overview • Not an exact science • Simple task in thought, but poor implementation • Employer failure to prepare sufficient description of position or ignore all together • Essential to employee and employer understanding of expectations and functions of position *

4. Job Descriptions, cont. • Practical and legal reasons to draft, maintain and update descriptions for every position • Defense of discrimination or other employment related claims • Assist in determining essential functions for purposes the ADA • "qualified individual" and essential functions *

5. Job Descriptions, cont. • Why do I need job descriptions? • Tools for recruiting • Determining compensation • Conducting performance evaluations • Clarifying expectations, goals • Creating reasonable accommodation procedures and controls • Measuring tool for management *

6. Job Descriptions, cont. • C. Benefits of Effective Job Descriptions • Provides opportunity to clearly communicate employer direction, goals, vision and mission, and employee's role • Sets clear expectations • Provides legal defense • Provides supervision with a clear understanding of individual responsibilities *

7. Job Descriptions, cont. • D. Common Mistakes • Describing employee instead of job (i.e., basing description on previous individual holding position rather than actual duties) • Using imprecise, inaccurate, vague or ambiguous language • Lack of specificity as to what individual is expected to do • Incorrect: “Librarian should manage books.” • Correct: “Librarian should attend to library materials at every stage in the process to ensure maximum circulation of materials, including _____." *

8. Job Descriptions, cont. • Failure to regularly update and provide copies to employee or acknowledgement of understanding from employee • Failure to allow for flexibility (i.e., cross-training, assistance of others to accomplish tasks) • Failure to utilize job description during hiring or promotion process *

9. Job Descriptions, cont. • E. Drafting • Effectively developed job descriptions act as communication tools between employers and employees • Poorly drafted job descriptions create confusion, discontent, resentment and potential liability • Job descriptions should be written and describe the duties, responsibilities, required qualifications, and reporting relationships of a particular job • Should be based on objective criteria obtained through specific analyses of the job(s), an understanding of the competencies and skills required to complete essential tasks and the needs of the employer to produce work product *

10. Job Descriptions, cont. • Clearly spell out and identify responsibilities of position • Include information discussing working conditions, tools and equipment to be used, necessary knowledge and skills, and relationships to other positions • Use gender neutral references (chairman v. chairperson) *

11. Job Descriptions, cont. • F. Developing and Implementing a Job Description • a. Job Analysis • Gather, examine, and interpret information about a position’s tasks to obtain an accurate understanding of the job so that it can be performed efficiently • Interview employees to determine what tasks are being performed • Observe how the tasks are performed • Employee questionnaires • Review other outside resources such salary surveys *

12. Job Descriptions, cont. • Document results and reviewed with employee currently holding position and supervisor to determine if modifications to knowledge, skills, abilities, physical characteristics, environmental factors or credentials/experience • Knowledge: information obtained by experience or study • Skill: competence to perform a learned activity • Ability: competence to perform an observable behavior or behavior that results in observable product *

13. Job Descriptions, cont. • Physical characteristics: physical attributes an employee must have in order to perform job with or without reasonable accommodation • Environmental factors: working conditions • Credentials/experience: minimum level of education, experience and certifications for the position *

14. Job Descriptions, cont. • b. Essential v. Non-Essential Functions • Establish a performance standard • Determine tasks that are part of job function are necessary or are a requirement to perform the job • Frequency at which the task will be performed or how much time devoted to performing a task • What consequences occur from not performing a function and whether this would be detrimental to operations • Can tasks be reconfigured or performed in another manner • Should tasks be reassigned to another employee *

15. Job Descriptions, cont. • Determination of whether function is essential or marginal • “essential function” should appear in job description and should explicitly state how the individual is expected to perform the job • c. Organize Data Collected • Descriptions should be uniform and standardized • Information to include: • Date of creation (including date of last revision) • FLSA Classification • Position Title • Function of position • Reporting structure *

16. Job Descriptions, cont. • Supervisory responsibilities • Position description with general areas of responsibility listed • Essential functions with examples • Required knowledge, skills and abilities • Required education and experience • Description of the physical demands • Description of the work environment • Unplanned activities (i.e., “other duties as assigned”) *

17. Job Descriptions, cont. • d. Employee Acknowledgement • Important for validating description • Should include signature for approval of management or applicable supervisor • Indicates employee understanding of requirements, essential functions and duties of position  • e. Finalize • Draft description should be reviewed and approved by upper management • Once reviewed, incorporate any suggested changes • Final descriptions should be maintained in a secure location and copies used for job postings, interviews, accommodation requests, compensation and performance reviews • Post on library intranet • Update and review periodically *

18. Job Descriptions, cont. • FLSA Issues • a. Proper classification is key • "duties" v. title • Exempt v. non-exempt • b. Description must match the reality of the job, not what management believes the job to entail (importance of updating and audits) *

19. Job Descriptions, cont. • H. ADA Issues • ADA prohibits discrimination against qualified individuals with a disability on the basis non-job related factors. • Cannot inquire of an applicant whether an individual has a disability or as to the nature or severity of such disability pre-employment • During the hiring process, an employer is permitted to describe the nature of the job, essential functions and ask applicant if he/she is capable of performing the duties of the job. However, an employer is prohibited from making disability related inquiries and should be wary of volunteered information concerning disability from the applicant. • May ask about ability to perform both essential functions and marginal functions, but may not refuse to hire an applicant with a disability because the applicant’s disability prevents him from performing marginal functions. *

20. Job Descriptions, cont. • If a disability will not interfere with or prevent the performance of job related functions, the employer may only request a description or demonstration of the applicant if it routinely makes such requests of all applicants in the same job category. • Title I of the ADA requires employers to provide reasonable accommodations to qualified applicants and employees with a disability unless the employer can demonstrate that doing so creates an undue hardship to the employer or poses a direct threat to the safety of the employee or others in the workplace. • Type of accommodation will vary *

21. Job Descriptions, cont. • I. Other Legal Considerations • Equal Pay Act: ensure that there’s no disparity in pay rates for genders performing the same role. • Title VII: prohibits discrimination with respect to hiring, compensation and other terms, conditions, and privileges of employment based on race, color, religion, sex or national origin. However, this does not prohibit an employer from hiring or promoting on the basis of qualifications and merit. • ADEA: allows employer to make decision based on a reasonable factor other than age (e.g., required educational degree for hiring or termination for poor performance); allows decision to take into account age if age is bona fide occupational qualification (BFOQ); or to comply with a bona fide seniority system or bona fide employee benefit plan *

22. Job Descriptions, cont. • At-Will Employment: no language in job description that states or implies that the job is anything other than at-will *

23. Employee Manuals An Overview of Policies and Developing Your Employee Manual *

24. Employee Manuals • Importance of Having an Employee Policy Manual • Fulfills employer legal obligations and serves as evidence of employer good faith efforts to comply with applicable laws (i.e., FLSA, Title VII, FMLA, state law etc.) • Employee Communication; Informs employee of their rights and at the same time defends you against lawsuits arising out of an employee's lack of understanding *

25. Employee Manuals, cont. • Provides legal protections against damages and liabilities from employee lawsuits • Creates uniformity; explains employer expectations • Provides valuable information to employees and explains rules, policies, benefits etc. • Serves as a reference guide to all employees • Increases employee efficiency (as well as management) and may shorten training periods • One size does not fit all; draft specific to organization *

26. Employee Manuals, cont. • B. Precautions to Take in Drafting • Should be straightforward and in simple language; avoid ambiguity and confusion • Should be regularly updated with attention to changes in applicable laws • If you implement a policy, apply uniformly and consistently • Don't implement policies you don't intend to adhere to *

27. Employee Manuals, cont. • C. Subject Areas to Consider for Inclusion • Introduction to Handbook • History of Employer • Employment Status • Hours of Work and Overtime • Payroll and Wage Deductions • Employee Orientation • Background Checks *

28. Employee Manuals, cont. • D. Necessary Policies • Non-Discrimination Policies • EEO policy statement • Non-discrimination and harassment, including sexual harassment • ADA Accommodation • Employee dating/non-fraternization • Attendance and Leave of Absence • Attendance policy, including discussion of job abandonment • Medical Leave of Absence • Personal Leave of Absence *

29. Employee Manuals, cont. • FMLA Policy, including military leave amendments, GINA disclaimer and FORM 1420) • Military Leave (USERRA and Indiana state law) • Vacation, Personal Days, Sick Days, PTO, Holidays • Workers Compensation, STD, LTD • Jury Duty, Bereavement *

30. Employee Manuals, cont. • Compensation and Benefits • Timekeeping Requirements • Meal and Rest Periods, including break periods for nursing mothers • Reviews and Appraisals • Payroll and Wage deductions • FLSA Safe Harbor Statement (applicable to wage deductions from exempt employee compensation) • Payroll Advances • Health Insurance and other related benefits • 401(k) Plan or other retirement benefit • COBRA *

31. Employee Manuals, cont. • Technology • Computer Use, including internet and e-mail • Cell Phones/Texting • Social Media • Workplace Monitoring • Confidentiality of Library Information *

32. Employee Manuals, cont. • Safety and Health • Workplace Accidents • Tools and Equipment • Smoking and Tobacco Use, including e-cigarettes • Guns and Weapons • Workplace Violence • Substance Abuse Policies, including testing • Drug-Free Workplace *

33. Employee Manuals, cont. • Miscellaneous Policies • At-Will Employment Policy Statement • Work Rules and Employee Conduct • Progressive Discipline • Dress Code and Uniforms • Conflict of Interest • Moonlighting • Personnel Records • Reference Requests *

34. Employee Manuals, cont. • Termination of Employment • Exit Interviews  • Implementation, Acknowledgement and Revision • Distribution to Employees • Employee Acknowledgements • Periodic Updates • Maintenance *

35. Employee Coaching and Discipline The How-To's of Employee Coaching and Discipline *

36. Employee Coaching and Discipline, Cont. • a. Coaching v. Discipline • In general, disciplinary action is the result of employee violation of work rule or other employer policy • Coaching serves as an alternative to disciplinary action in an attempt to allow employee to address performance deficiencies • Formal discipline and coaching take many forms and can have a variety of effects on the workplace • Dependent upon management style and philosophy • HR, supervisors and managers need to further understand the differences in order to evaluate the best approach *

37. Employee Coaching and Discipline, Cont. • b. Ownership • Application of disciplinary procedures places ownership of the issue on the manager, supervisor and human resources • In most cases, the employee is asked to react in some manner to the action being taken and it is then the manager's responsibility to ensure the corrective action is taken or the conduct does not reoccur • Ownership of the issue on both the manager and employee. • Allows for the creation of a solution to the issue and places onus on employee to find ways to solve the issue with guidance from the manager *

38. Employee Coaching and Discipline, Cont. • Opportunity • Coaching is based on creating an opportunity for both the manager and employee to learn how to improve their relationship by allowing the manager to identify the core issues and work with the employee towards resolution • Discipline addresses the problematic conduct but does not address the root of the problem *

39. Employee Coaching and Discipline, Cont. • Relationship • Coaching serves as an opportunity to improve employee performance and at the same time improve manager and employee relationships (similar to interactive process under ADA) • Discipline results without attempting to interact with the employee which may lead to additional issues such as lost morale, loss of production and employee turnover *

40. Employee Coaching and Discipline, Cont. • Retention • Coaching creates a workplace based on an active relationship between the manager and employee. • If employees have an issue they are informed that they may approach the manager to resolve the issue • Discipline tends to create a workplace where employees are less likely to approach a manager to resolve issues *

41. Employee Coaching and Discipline, Cont. • f. When is Coaching Appropriate? • Goal is not to make the employee feel badly. Coaching attempts to work with an employee to solve performance problems • Possible Coaching Opportunities • Employee is performing poorly or appears discontent without explanation for a change in behavior • Employee hasn't received all required training or lacks an understanding how to approach management • To explain employee's work expectations and/or to expand employee skill set *

42. Employee Coaching and Discipline, Cont. • g. Effective Coaching Suggestions • Recognize and describe issue • Indicate confidence in employee ability and solicit employee's help with finding a resolution to issue • Focus on problem or behavior that needs improvement, not the person and seek out the employee's view • Determine whether there are limitations to the employee's ability to perform a specific function or to accomplish objectives and consider how these limitations can be eliminated • Discuss potential solutions or improvements that can be made; ask employee for ideas on how to correct the problem and prevent it from happening • Agree on a written plan of action that lists what the employee, the manager or other team member will do to correct the problem *

43. Employee Coaching and Discipline, Cont. • When does Coaching Become Discipline? • If an employee fails to address certain acknowledged performance issues that have been discussed • May include a verbal or written plan (i.e., PIP) of action to correct the issue and provide for evaluation over the course of a designated time period; explains consequences for failure to improve and/or reoccurrence of conduct after successful conclusion of plan • Provide for employee feedback *

44. Employee Coaching and Discipline, Cont. • Process Requirements • Documentation and acknowledgement of employee • Consultation between employee, supervisor, manager and human resources • Consequences should be specifically laid out from the beginning to avoid surprises *

45. This information is provided for informational purposes only. This presentation does not constitute legal advice, nor does it create an attorney client relationship. THANK YOU! *