About Don Berman
Professional Services Leader - HRTMS
 Since 1989, Don Berman has spearheaded the introduction and adoption of HR and talent management applications and technology driven best practices at large and mid-sized companies throughout the U.S. As co-founder and Professional Services
Lead, Don has helped guide HRTMS Talent Management solutions toward a new Job
Description-centric model that resulted in HRTMS Jobs--the leader in Job Description
Management.
About Kara McKenna
Human Resources Consultant
 Kara McKenna is a human resources consultant who has worked in the FDA regulated industry for 20 years. She has extensive experience in the areas of management, compensation, benefits, performance, employee relations, training and recruitment. As a customer of HRTMS Jobs, Kara managed a global, multilanguage implementation of the software for a medical device company and developed related training materials.
Kara is actively consulting to provide process definition and best practice methodology for job descriptions.
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presented by Don Berman & Kara McKenna hrtms.com
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Is the Single Most Critical Issue for Strategic HR
Identify and retain top performers
Identify and manage bottom performers
Protect your company from regulatory sanction
Benchmark/Evaluate jobs to compensate employees fairly
Develop an equitable salary structure
Protect your future with effective succession plans
Evaluate employee productivity & performance
Motivate employees with engaging Career Paths
Recruit the right people
A clear understanding of the Job is Required to: Identify Employee
Training Gaps hrtms.com
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Central to HR/Talent Management
• A Robust up-to-date job description repository can ensure that all aspects of your HR and talent management activities are reading from the same hymn book.
• Helps ensure compliance with regulatory bodies.
Career Pathing
Succession
Training
Performance
Management
System/
Process
ATS/Recruiting
Process
Compliance
FLSA, ADA,
FDA, Joint
Commission
Job
Description
Compensation
Plans &
Salary
Structure
Corporate
Culture
Future Plans hrtms.com
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• Identify the Regulation Involved
• Discuss how the regulation affects Job Descriptions
• Provide recommendations and Identify best practices
• Give client feedback on JD repository impact on compliance
• Screenshots/document snippets for context hrtms.com
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• General guidelines – Apply across all compliance areas
• ADA
• FLSA
• FDA's 21 CFR 820.25 & Part 11
• The Joint Commission
• Wrap up and Questions hrtms.com
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• Clear
 Avoid flowery overwritten and vague verbiage:
• “…responsible for communicating any internal issues of importance to any of the constituencies involved in the company’s day-to-day happenstances, in formats including, but not limited to daily updates, weekly publications, annual reports.”
Vague, Confusing, Does not describe what the person will actually do
• “Handles internal communications regarding company decisions and accomplishments on an as needed basis”
• Reasonable/Truthful
 Avoid Hyperbole “On call 24/7”
 Don’t Glamorize the JD hrtms.com
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• Collaboration is the key to effective job descriptions because the knowledge needed is embedded with multiple Stakeholders.
• Typical participants are:
 Hiring Manager
 HR Generalists
 Compensation
• Track changes paradigm
• Updated Annually or when job changes hrtms.com
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Managers Upper management
HR Business Partner
Compensation
Final Approval hrtms.com
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• Leverage content that Is known to be compliant
• Gain consistency by leveraging content from
 Job Descriptions of Similar Jobs
 Content Library/Standard Statements
 Repository allows for Intelligent content searching hrtms.com
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• Titles I of the Americans with Disabilities Act of 1990
 Addresses the rights of individuals with disabilities in employment settings
 Title I is to ensure that qualified individuals with disabilities are protected from discrimination based on their disability
 SUBCHAPTER I – EMPLOYMENT, Sec. 12111. Definitions
• (8) Qualified individual
The term "qualified individual " means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written
description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.
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• The Americans with Disabilities Act (ADA) was established to help protect those with disabilities from being discriminated against in the workplace
• Enforced By the EEOC
• Under the ADA it is unlawful for any employer with 15 or more employees to discriminate against a qualified applicant or employee because of a disability
• The ADA defines an individual with a disability as a person with a
“physical or mental impairment that substantially limits one or more major life activities.”
• Those “associated with a person with a disability” are also protected under the ADA but employers are not required to provide reasonable accommodations to a person without a disability due to that person's association with someone with a disability.
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• Although the ADA does not require job descriptions, it does require that applicants and employees are able to perform the “essential functions” of the job, with or without reasonable accommodation.
• The Equal Employment Opportunity Commission (EEOC) who oversees the law, has said that one of the documents the agency will look at when determining essential functions are job descriptions written before an employer advertises to fill a
job opening.
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• You will use Job Descriptions to:
 Determine whether an employee/applicant will be able to perform in the job
 Arrive at acceptable accommodations
 Defend a claim of disability discrimination hrtms.com
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– Essential Functions (and Job Summaries)
– Physical Demands and working conditions
– Qualifications hrtms.com
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• AKA Duties, Responsibilities, Accountabilities (not ideal)
• These are the High level tasks role holders will perform
• Clients often limit these (4-10)
• For ADA need: Essential Function Desc & % of time hrtms.com
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• Employer decides what the job is and what functions are required
• Employers can set standards and do not have to justify them
• Why a function could be considered Essential
 The position exists to perform the function
 There are a limited number of other employees available to perform the function, or among whom the function can be distributed.
 A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it.
 A large percent of time is spent performing the function
 Serious consequences if a function is not performed.
 Functions are listed in a collective bargaining agreement
 Nature and scope of work hrtms.com
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• No forbidden words, but it’s important that the language in your job descriptions is not prejudicial to a qualified individual with a disability.
• Focus on the essential functions of the job, not the ways they are currently or customarily performed.
 E.g. an employee does not necessarily have to walk in order to move about the office; an individual in a wheelchair can accomplish the task even if he/she cannot walk.
• For ADA Include only relevant necessary requirements
 If the item is not absolutely necessary to do the job
• Leave it out
• Include it as a Non-Essential function hrtms.com
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Used for ADA situations to determine if an employee is capable of performing in the job
• Provides the physical details for
Essential Functions
• Used to determine what accommodations can be made
• For ADA Need:
 Physical Demand/Working Condition
Description
 Frequency
 Weight (for weight related items) hrtms.com
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Physical Demand
Stand or Sit
Walk
ADA-Compliance Words
Stationary position
Move, Traverse
Job Description Language Example
Must be able to remain in a stationary position 50% of the time.
The person in this position needs to occasionally move about inside the office to access file cabinets, office machinery, etc.
Use hands/fingers to handle or feel
Operation, Activate, Use, Prepare,
Inspect, Place, Detect, Position
Climb (stairs/ladders) or balance
Ascend/Descend, Work atop,
Traverse
Stoop, kneel, crouch, or crawl Position self (to), Move
Talk/hear
Constantly operates a computer and other office machinery such as a calculator, copy machine, and printer.
Occasionally ascends/descends a ladder to service the lights and ceiling fans.
Constantly positions self to maintain computers in the lab, including under the desks and in the server closet.
The person in this position frequently communicates with students who have inquires about their tuition bill. Must be able to exchange accurate information in these situations.
Must be able to detect funnel clouds from long distances.
See
Communicate, Detect, Converse with, Express oneself, Exchange information
Detect, Determine, Perceive,
Identify, Recognize, Judge,
Observe, Inspect, Estimate, Assess
Detect, Distinguish, Determine Taste/Smell
Carry weight, lift
Occasionally must be able to distinguish sweet and bitter flavors when creating desserts for customers.
Frequently moves Audio/Visual equipment weighing up to 50 pounds across campus for various classroom and event needs
Constantly works in outdoor weather conditions.
Exposure to work
Move, Transport, Position, Put,
Install, Remove
Exposed, Work around http://hrdailyadvisor.blr.com/2009/03/18/non-prejudicial-language-for-ada-job-descriptions/# hrtms.com
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• Best practice is to select from List
• Lists of physical demand/working conditions may vary depending on the job hrtms.com
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Process for determining physical demands/working conditions Items
• Often culled from disability claims over time
• Reviewed periodically to evolve over time with changes in job equipment and ADA.
• Standard Lists
• Industry specific
 Corporate/Healthcare/Manufacturing
• Working Conditions: Rules and regulations such as state disability and federal and state safety and health laws hrtms.com
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• Education
• Experience
• Skills
• Licenses/Certifications
 Avoid “Driver’s license” If not necessary
 Include Lic/Certifications required by disability, safety and health laws hrtms.com
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• For ADA Job Description and posting are both at issue
• Automated Integration between JDs and ATS – easy win hrtms.com
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• 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
• Work with front-line supervisors to ensure that the job description accurately reflects the actual tasks being performed
• Make sure your job descriptions are up-to-date
• Multiple Roles – Make sure employees are aware of multiple
Job Descriptions hrtms.com
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• A reasonable accommodation is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”
• Common accommodations may include:
 making a facility accessible to individuals with disabilities
 restructure a job or work schedule
 modify equipment, tools, training procedures or other programs
 provide qualified readers or interpreters
• An employer does not have to provide reasonable accommodations if it would impose an “undue hardship.”
• Undue Hardship is defined as an “action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.”
• Employers do not have to sacrifice quality or lower production standards to make accommodations; nor do they have to provide the individual with personal use items such as glasses, hearing aids, walkers, etc.
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*
• Computer Programmer with Diabetes
• Food Services Manager with MS
• A Sheet Metal Worker has a speech impairment.
*Job Accommodation Network http://Askjan.org
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• Provide written documentation of company’s efforts to be in compliance with ADA regulations
• Assist with conducting legally defensible job analysis
• Ensure completion of job description is consistent regardless of individual completing
• Assist in writing accurate job descriptions by providing examples that meet compliance standards
• Insure that all JDs were up to date and complete
• Standard Checklists for Physical Demands and working conditions
• Reporting to find missing data, gaps and/or outliers
• Mass updates to ensure consistency if changes to documentation occur
• Audit trail for changes and approvals hrtms.com
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• Verizon - $7.7M
 2013 settlement for improper calculation and payment of overtime based upon commission bonus and for deductions to overtime recorded or submitted by employees
• Tyson Foods – $19M
 2014 judgment for not paying employees for time spent donning and doffing protective gear
• Bank of America - $73M
 2013 settlement for approved for “Off the Clock” FLSA Violations
• Walmart - $4.8M
 2012 settlement for back wages and damages as well as $464,000 in civil penalties for failure to pay overtime to more than 4,500 workers misclassified as exempt hrtms.com
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• The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments.
• The FLSA was designed to protect workers from being required to work long hours without extra payment.
• Exempt and non-exempt simply refers to what employees are to receive overtime pay and which employees do not.
 Exempt employees are exempt from overtime regulations as well as minimum wage laws
 Non exempt employees must be paid for any overtime they work hrtms.com
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• Employees classified as nonexempt:
 Are paid for all hours worked, including overtime pay
 Must be paid no less than the federal minimum wage (or a state’s minimum wage, whichever is greater) and at an overtime rate no less than one and one-half times his/her regular rate of pay if working beyond a certain number of hours in a day or week
 Are paid more frequently
 Must take rest breaks and meal breaks
• Employees classified as exempt:
 Are paid to get the job done regardless of hours worked
 Are paid an established salary
 Are not eligible for overtime pay
 Are not required to take meal breaks or rest breaks hrtms.com
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• In general, there are three basic tests to help determine if an employee is exempt or nonexempt:
 Salary level test
 Salary basis test
 Duties test hrtms.com
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• If the employee makes less than $455 per week he/she is to be classified as nonexempt.
• The employee is subject to FLSA regulations such as:
 Paid an hourly rate no less than federal minimum wage (or a state’s minimum wage, whichever is greater)
 No less than one and one-half times his/her regular rate of pay if working beyond 40 hours in a workweek
• The employee makes more than $455/week, then move on to the salary basis test to see if they qualify for exempt status hrtms.com
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• Next, determine if the employee regularly receives a predetermined amount of compensation for each pay period in which the employee performs any work, regardless if there is a variation in the quality or quantity of work performed.
• If the employee qualifies as exempt move on to the
Job Duties Test hrtms.com
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• Categories of jobs that are typically, but not always, exempt:
 Executives: supervisors, managers
 Learned Professionals: registered nurses, lawyers
 Creative Professionals: artists, actors
 Administrative Professionals: accounting, marketing
 Highly Compensated Employees
 Outside sales representatives and certain computer employees may be exempt as well.
• These areas correspond to the FLSA questionnaires from the DOL hrtms.com
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• Although job descriptions are not a requirement of the FLSA, they are the a widely accepted exhibit that can prove the essential functions of a job
• Accurate job descriptions are essential when determining whether an employee is exempt of non-exempt
• Don’t just look at an employee’s job title but also look at their duties and day-to-day responsibilities.
• Since duties/responsibilities change often, it’s important to periodically review job descriptions to verify if they are still current
• Keep diligent records about your employees’ status, hours worked, responsibilities, overtime paid, and more.
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• Needed as input for Job Duties Test
• Are usually central in any dispute
• Compensation uses these items in the Job Description to complete the FLSA Questionnaires
(Job Duties portion)
 Job Summary (Marginally)
 Essential Functions
 Scope hrtms.com
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• Although this should not be an area of concern, often details here can affect or undermine FLSA determination hrtms.com
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• Primary Input to Job Duties Test hrtms.com
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 Freedom to Act
 Problem Complexity
 Impact
 Supervision Exercised/
Received
 Financial Responsibility
 Budget Responsibility hrtms.com
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• Don’t create FLSA Classification Problems
“…Supervise 2 employees/can hire and fire”
“Eligible for overtime pay”
“This is an exempt position”
“…Salaried position”
“…Will supervise department”
Omit.
Don’t use these terms or
Discuss this topic
• Don’t undermine at will employment
“This is a permanent Position”
“…prides itself on employee retention”
Don’t Mention unless Temp
Omit. Implies ongoing employment hrtms.com
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• Primary duty must be making sales, obtaining orders or contracts for services or for the use of facilities for which the client will be paid
• Customarily and regularly working away from the company’s place of business
#1 - A field technician sells HVAC systems while on calls for a customer’s heating system.
Does this position qualify for an exemption?
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• Engaged in systems analysis and consulting with users
• Designing, analyzing, testing computer systems
• Designing or testing computer programs
• Or a combination of the above
#2 - A programmer analyst meets with internal clients to identify issues in their system and then programs a modification to rectify it.
Does this position qualify for an exemption?
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• Accurate up to date Job Descriptions should be readily available to employees
• Employees should be given the ability to provide feedback
• Employees should Acknowledge (Sign off) on their job descriptions:
 Upon hire
 When the JD changes
 Annually hrtms.com
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• Protect against FLSA wage and hour lawsuit
In an article, Beware 'Misclassification Creep' in Employee Exemption , Littler Mendelson shareholder and co-chair of the firm’s wage-and-hour practice group, Lee Schreter states,
“It’s easy enough for companies to ask their employees to sign off on their job descriptions during their periodic performance reviews, so there is both mutual understanding and, for the employer, well-documented proof that the employee knows where they stand. That kind of evidence, I believe even the courts will be hard-pressed to dismiss.” hrtms.com
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• Provide written documentation of company’s efforts to be in compliance with FLSA regulations
• Conduct legally defensible job analysis that is consistent regardless of individual conducting the review
• Assist in writing accurate job descriptions by providing examples that meet compliance
• Creates a central location for documentation for job description, including FLSA testing and scope
• Database that is searchable and allows reporting to find missing data, gaps and/or overdue evaluations
• Provides mass updates to ensure consistency
• Provides an audit trail for changes and approvals
• Explain FLSA decisions internally hrtms.com
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• Tracking hours worked correctly
• Ensuring that an employee’s “regular rate” for calculating overtime is correct hrtms.com
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• Educate/train your managers to ensure that employees record time accurately
 Instruct managers about not letting employees work “off-theclock
 Be sure to include non-standard work such as training, waiting time etc.
• Be sure to calculate overtime correctly
 Ensure that other elements of pay are included in calculating base salary for overtime hrtms.com
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• On March 13, 2014, President Obama directed the Secretary of the U.S. DOL to promulgate new rules
• New rules will significantly raise the bar for certain employees to qualify as exempt from overtime pay requirements under the
FLSA.
• Secretary of Labor has provided insight as to what employers can expect
 Salary Basis test - minimum salary of $455 per week expected to increase to as much as $900 per week
 Duties Test - To be exempt 50% of Time must be spent doing management duties, not primary duties as currently defined.
• Employers will need to track which essential functions are exempt as well as % of time for each function hrtms.com
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• Personnel-related requirements for manufacturers of finished medical devices.
• Govern the methods used in, and the facilities and controls used for, the design, manufacture, packaging, labeling, storage, installation, and servicing of all finished devices intended for human use.
• Intended to ensure that finished devices will be safe and effective and otherwise in compliance with the
Federal Food, Drug, and Cosmetic Act (the act).
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• Personnel (a) General:
 Each manufacturer shall have sufficient personnel with the necessary education, background, training, and experience to assure that all activities required by this part are correctly performed. hrtms.com
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• Personnel (b) Training:
 Each manufacturer shall establish procedures for identifying training needs and ensure that all personnel are trained to adequately perform their assigned responsibilities. Training shall be documented.
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• 21 CFR Part 11 was introduced by the FDA in 1997
• Provide the criteria under which the agency determines the reliability of electronic records, electronic signatures, and handwritten signatures that are executed to electronic records.
• Apply to records in electronic form that are created, modified, maintained, archived, retrieved, or transmitted, under any records requirements set forth in agency regulations. hrtms.com
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• The ability to generate accurate and complete copies of records in both human readable and electronic form suitable for inspection, review, and copying by the agency.
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• Protection of records to enable their accurate and ready retrieval throughout the records retention period.
 Safeguards such as nightly back ups, role based security and built in controls all contribute to data protection. A ‘Retired’ flag helps manage obsolete records.
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• Use of secure, computer-generated, time-stamped audit trails to independently record the date and time of operator entries and actions that create, modify, or delete electronic records.
 Detailed user time and date stamp for the creation and modification of job description records hrtms.com
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• Revision and change control procedures to maintain an audit trail that documents time-sequenced development and modification of systems documentation.
 Archives that record the sequenced changes to a job description over time. hrtms.com
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• Signed electronic records shall contain information associated with the signing that clearly indicates all of the following: (1)
The printed name of the signer;(2) The date and time when the signature was executed; and (3) The meaning (such as review, approval, responsibility, or authorship) associated with the signature.
 Job Description acknowledgements contain Signed By, Name, Date, Time and IP Address.
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• Electronic signatures that are not based upon biometrics shall:(1) Employ at least two distinct identification components such as an identification code and password.
 System entry requires a unique user ID and password to log on.
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• When an individual executes a series of signings during a single, continuous period of controlled system access, the first signing shall be executed using all electronic signature components; subsequent signings shall be executed using at least one electronic signature component that is only executable by, and designed to be used only by, the individual.
 The system can suppress any other user options until an active acknowledgements is completed, ensuring controlled system access under the user’s logon credentials. hrtms.com
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• Standardized job description records to capture required job elements: education, background, training and experience.
• Comprehensive, consistent job description format to identify training criteria, so that sufficient training of personnel may be demonstrated.
• Controls to provide a secure database for the company’s record retention period (i.e. 5 years following the period of active employment).
• Ability to see the job description history of an employee for lookback purposes.
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• The Joint Commission is an independent, not-forprofit organization that accredits and certifies more than 20,500 health care organizations and programs in the United States.
• To be accredited by The Joint Commission a heath care organization must meet certain requirements and standards.
• One requirement of The Joint Commission is the maintenance of accurate/current job descriptions.
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• A Competency-Based Job Description should include the primary responsibilities/essential duties of the job, qualifications, primary source verification and patient populations to whom care is to be delivered (if applicable) must be defined clearly in the job description as well as physical demands, work environment and other duties as assigned.
1
• …The primary responsibilities of the job should be indicated in the “essential duties and responsibilities section” of the job description. Competency-Based validation ensures each employee possesses the skills identified in the job description and adequately performs the essential duties.
• ….Avoiding The Joint Commission citations in the area of competency assessment begins with the job description itself, which should clearly delineate the qualifications for the job.
2 .
1 2 Competency Assessment: A Practical Guide to the JCAHO Standards hrtms.com
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• Avoiding The Joint Commission citations begins with the job description itself
• Ask yourself these questions:
 Does each position have a written job description?
 Does each job description identify the minimum skills, knowledge, and experience required for the position?
 Does each job description identify the duties and responsibilities of the position?
 Does the job description have appropriate approvals?
 Do staff members practices within the scope of their job description?
 Does staff/managers acknowledge their job descriptions?
• If you have trouble answering these questions, it’s time to update and start actively managing your job descriptions.
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• Job Description => Review => Annual Validation hrtms.com
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“…Population to whom care is given” hrtms.com
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• These laws do not say that job descriptions are required; however, they are still the best way to document each job
• Very difficult and almost impossible to manage your job descriptions without a system to help you out hrtms.com
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• ADA
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
 http://www.eeoc.gov/laws/statutes/ada.cfm
https://adata.org/publication/disability-law-handbook http://www.shrm.org/legalissues/federalresources/pages/job-descriptions.aspx
http://www.ada.gov/q&aeng02.htm
http://www.eeoc.gov/facts/ada17.html
http://hrdailyadvisor.blr.com/2009/03/18/non-prejudicial-language-for-ada-job-descriptions/# http://www.tmhra.org/ADAToolkit/5-WriteADA-JobDescrip.pdf
http://askjan.org/media/jobdescriptions.html
http://www.lewiswagner.com
http://www.ncdhhs.gov/humanresources/forms/classification/c201-ada.pdf
http://publichealth.nc.gov/employees/hr/classification/ADA-Checklist.pdf

• FLSA



 http://www.dol.gov/whd/flsa/ http://www.hrtms.com/landing-flsa-avoiding-common-pitfalls--costly-mistakes.html
http://www.mvalaw.com/news-publications-304.html
http://www.uhnj.org/hrweb/compensation/competency-based_jd_guide.pdf
• 21 CFR Part 11
 http://www.fda.gov/RegulatoryInformation/Guidances/ucm125067.htm
• 21 CFR 820.25

 http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/CFRSearch.cfm?CFRPart=820&showFR=1 http://www.fda.gov/downloads/
• The Joint Commission
 http://www.jointcommission.org/assets/1/6/2009_CLASRelatedStandardsOME.pdf
 http://www.uhnj.org/hrweb/compensation/competency-based_jd_guide.pdf
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