An increasing number of liability cases are concerned with employment practices. One reason for this is that there are so many laws that can be used as basis for an employment practice liability claim. Some of the laws include; Civil Rights Act of 1964, the Fair Labor Standards Act (FLSA), the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), the Equal Opportunity Commission Rules (EEOC), and the Age Discrimination in Employment Act (ADEA). There may also be sections contained in your public entity’s charter or incorporating documents, in state laws and with Florida workers’ compensation statutes.
Good documentation of employment practices and actions have been known to reduce or eliminate liability exposure. One of the first forms of documentation that needs to be accurate, periodically reviewed, and updated is a job description for every position.
Below is an outline of headings all job descriptions should contain:
1. Purpose and Description
a. Why the job exists and briefly describes what the work involves.
2. Major/Essential Functions
a. These are the duties a person must be able to do in order to hold the position. (Example – If the person must drive in order to perform their job, they must be able to drive a vehicle legally.)
3. Minor/Other Functions
a. These are other duties that the position in the past has completed and is likely to be assigned again but are not the major or essential functions of the job. (Example – Driving of vehicles could be part of the position but if the person cannot drive, accommodations can be made so that the person can still hold the position.)
b. This section also should list wording such as – “and other duties as assigned”. Once these “other duties” become common to the position they should be listed in the major or minor duties.
4. Days, Hours and Environment Exposure of the Position
a. Should also include: shift work, possible changes of regular hours or days, overtime, frequency and likelihood of and type of travel.
b. Environment exposed could include items such as; heat, cold, noise, outside, inside, office or vehicle.
5. Bona Fide Occupational Qualifications (BFOQ)
a. Gender (Example – Restroom attendant could have to be specific toward type of restroom.)
b. Age (Example – Lifeguards could have to be 16 or older.)
c. Licenses (Example – A delivery driver could require to have a Commercial Drivers License (CDL).)
i. You can also state that the person in the position has a certain timeframe to obtain the license.
d. Education (Example – Law enforcement officer could be required to have high school diploma.)
i. You can also state that the person in the position has a certain timeframe to obtain the education.
e. Clearances (Example – Electrical worker could need a security clearance to enter the power plant.)
i. You can also state that the person in the position has a certain timeframe to obtain the clearance.
f. Certifications (Example – The safety officer could be required to be a Certified Safety Professional (CSP).)
i. You can also state that the person in the position has a certain timeframe to obtain the certificate.
6. Background Check or Credit Check if Required
a. Should follow public entity’s policy and procedures for this and reviewed by the public entity’s legal counsel to confirm it follows current laws.
7. Physical Requirements
a. The position should be reviewed to assure all likely physical requirements are listed. This can include visual acuity, being able to hear at a certain level, lift certain weight or other physical efforts. Point out that reasonable accommodation can be made if they are known. (Example – A delivery driver may be required to sit for extended periods.)
b. Speak, read, write and comprehend (language) if it is required for the position.
8. Standard Goals for Position
a. These are the requirements for the position that is generally accepted. (Example – A driver could be required to drive 275 miles in 5 hours.)
9. Must follow safety program/policy/procedures, which should also be noted in the employee handbook.
a. Should list the potential hazards of the position. (Example – A cleaning person could be exposed to chemicals.)
The job descriptions should clearly note that the description can be changed at any time and that they do not create an employment contract. The job descriptions should be reviewed at least annually or whenever any of the sections discussed above change relating to the position.
When there is a new hire and they sign off on the job description post hire, they should be asked if there are any ADA accommodations they need in order to fulfill the position as outlined in the job description.
If you have any questions relative to your job descriptions or you would like them reviewed, please contact your FLC Risk Control Consultant.