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Linda Hollinshead
Partner
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I am often asked by HR professionals whether it is necessary to update job descriptions or, more simply, even have them in the first place. While there is no legal requirement to have a job description, there are a few practical reasons to do so.

A job description (or job posting) provides applicants with a general sense as to the nature of the position for which they are applying. For employees, a job description sets expectations and can be a useful benchmark against which a manager evaluates employee performance.

In the context of the Americans with Disabilities Act (ADA), a job description can be a key tool to support an employer’s position with respect to the essential functions of a position and the extent to which a requested accommodation may reasonably be provided. Unfortunately, a job description can also be a glaring statement of inconsistency.

In a recent lawsuit filed against a university, a horticultural specialist with lifting restrictions claimed that her employer failed to reasonably accommodate her lifting restrictions, instead keeping her on a leave of absence for two years. Her employer presented an undated job description purporting to show that approximately 90% of her position involved certain physical tasks and, therefore, the employee’s lifting restrictions could not be reasonably accommodated. However, the employee presented a copy of the job posting which did not emphasize physical requirements, but instead focused on job responsibilities such as planning, design and oversight that were “not physical in nature.” In light of the inconsistency, the court denied the employer’s motion for summary judgment and the employee’s failure to accommodate claim is now proceeding to a jury.

This case serves as a sound reminder to employers that job descriptions should be updated to reflect current tasks. The job description should also include a catch-all statement that it is further subject to those additional tasks established by the manager. Other documents such as performance evaluation tools, department protocols or requirements may also be cross-referenced in the job description to improve an employer’s ability to argue that the job encompasses those tasks. Inconsistencies with documents such as former job postings can be remedied by informing applicants and employees that those documents are general postings, subject to the more specific requirements of the department and/or manager.

Bottom line – take these extra steps to enable the job description to enhance your reasonable accommodation interactive process, not hinder it.

To learn more about the ADA interactive process, accommodation obligations and the importance of job descriptions, join us on Oct. 28th, 2015 for our Duane Morris Institute seminar entitle “Intermittent FMLA Leaves” and “Pregnancy, ADA and Religious Accommodations.”

 

About Linda Hollinshead
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Linda B. Hollinshead practices in the area of employment law. Ms. Hollinshead provides training and counseling to employers throughout the country on a variety of subjects, including monitoring employee attendance, FMLA compliance, medical and religious accommodations, leaves of absence policies, harassment and discrimination prevention, responding to harassment and discrimination claims, FLSA and wage and hour compliance, including employee misclassification, business diversity, termination of employees, hiring practices, performance appraisals and performance management. Ms. Hollinshead also advises public accommodations as well as recipients of federal financial assistance on program accessibility and other compliance obligations. Ms. Hollinshead advises clients in numerous industries, including colleges and universities, manufacturing and retail companies, hospitals and other healthcare organizations, technology companies, financial services organizations, energy companies and not-for-profit entities.
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Jonathan A. Segal
Partner
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I am pleased to share with you a blog I wrote for Entrepreneur on the gender pay gap.

Recently, Jennifer Lawrence wrote an article on the gender pay disparity she saw in her pay negotiations for the movie American Hustle. In her piece, she blamed herself for not negotiating harder. Now, I don’t know if gender accounted for that particular case of pay disparity, but I do know that this Oscar Award-winning actress was spot-on in understanding that assertiveness in a woman is not always viewed the same as it is in a man.

What is considered as laudably assertive in a man is too often viewed as unacceptably pushy, self-centered or aggressive in a woman (a scenario explained in more detail by Facebook COO Sheryl Sandberg’s in her groundbreaking book, Lean In: Women, Work and the Will To Lead).

To continue reading, please click here.

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .