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Rebuilding Your Workforce: Tips for Reducing Liability

Author: Rob DeOCampo, Dickenson, Peatman & Fogarty
January, 2011 Issue
For the past three years, most North Bay employers placed all new hiring on an unofficial “hold.” Many cut salaries, welcomed employee attrition and experienced one or more rounds of layoffs, reducing workforces to the bare minimum while riding out the recession. Now, an increasing number of employers are optimistic that the worst may finally have passed.

As companies emerge from this period of hunkering down, a welcome positive has emerged: A talented and motivated workforce is eager to return to work. As recently as three years ago, employers were sometimes caught in bidding wars for top talent. But now, the opposite is true. An Internet job posting will often bring dozens (if not hundreds) of applications. With this ready talent pool, employers have the opportunity to rebuild their workforces in a smart and measured manner. Here are two important steps all employers should take while reshaping their workforce.

Understand the position

Before advertising for any position, an employer should first identify what, exactly, the job entails. The most effective way to accomplish this is to draft a job description with the help of those who’ll directly supervise the employee.

A job description need not be overly complicated to be effective. However, it should accurately reflect the employer’s expectations as well as the duties and skills required for its performance. For instance, if the position requires an employee to lift objects weighing up to 40 pounds on a regular basis, it should say so. Similarly, if a position requires frequent interaction with Spanish-speaking clients, fluent or conversational Spanish skills could be an essential job function. These types of skills should never be listed “just in case.” Make it specific to the job.

The legal benefits of a well-articulated job description are myriad. First, by identifying the actual duties of the position, employers are more likely to identify applicants with appropriate skill sets. Applicants well-suited to the position are less likely to injure themselves, require extensive training or experience early job dissatisfaction—all of which can lead to decreased productivity and/or increased legal costs. In short, a well-written job description will help an employer identify applicants who are actually qualified and appropriate for the available position.

A well-written job description can also help the employer comply with state and federal laws, because some employment laws look to the written job description to determine whether leave requests or modified job responsibilities are reasonable or required. Similarly, the job description can help determine whether an employee or applicant can perform the position’s essential job functions. The Equal Employment Opportunity Commission (EEOC) published a guideline for employers to use when considering the issue. It reads, “[E]ssential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation.”

To determine if a function is essential, consider:

•    whether the reason the position exists is to perform that function;

•     the number of other employees available to perform the function or among whom the performance of the function can be distributed; and

•     the degree of expertise or skill required to perform the function.
In the event of a legal dispute, your judgment as to which functions are essential, along with an accurately written job description prepared before advertising or interviewing for a job, will be considered by the EEOC as evidence of “essential functions.” Be careful, though. If a written job description fails to identify the essential duties, requirements and functions of a position, state and federal agencies will disregard it. The lesson is simple: Take the time before posting a position to determine exactly what that position entails. Then put it down in writing.

Ask the right questions

After identifying the skills it needs in an applicant, an employer must plan the interview process carefully. One consequence of the larger applicant pool has been an increase in the amount of unselected (and unqualified) applicants (that is, those not chosen to interview for the position). Over the past two years, a handful of high-profile cases have demonstrated that unselected applicants can still state a case against the employer. As a starting point, every employer should familiarize itself with the Department of Fair Employment and Housing’s three-page fact sheet titled “Employment Inquiries: What Can Employers Ask Applicants and Employees?

This fact sheet explains that employers are prohibited from making “non-job-related inquiries of applicants or employees, either verbally or through the use of an application form, that express, directly or indirectly a limitation, specification or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation [among other protected categories].” More important, however, it suggests strategies for avoiding these common topics through appropriate questioning.

For example, it notes that questions regarding an applicant’s “nationality, lineage, ancestry, national origin, descent or parentage of applicant, applicant’s spouse, parent or relative” are prohibited inquiries into an applicant’s national origin. An employer is, however, permitted to inquire what “languages [the] applicant reads, speaks or writes if use of language other than English is relevant to the job for which applicant is applying.” Similarly, an employer isn’t permitted to inquire if an applicant observes any particular religious days. It can, however, tell job applicants “of regular days, hours or shifts to be worked.” By reviewing this fact sheet prior to an interview, managers and supervisors can both focus their questions and avoid problem areas of questioning.

Equally important is asking questions designed to discover whether an applicant has the appropriate skills for the position. After identifying a job’s essential functions beforehand, the employer should take time to go through the same exercise with its interview questions. By taking these simple yet important steps before posting a job opening, employers can avoid mistakes and rebuild their workforce in a thoughtful—and legally defensible—manner.


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