by Sally Colby
When it comes to labor and hiring practices, attorney Anthony Raimondo knows what he’s talking about. Raimondo has extensive experience in agriculture law, and is an instructor on farm labor contractor licensing.
“Farming has always been a labor-intensive activity,” said Raimondo, who practices in California, “so you need employees. “What can you do at the start of the relationship (with employees) to protect against risk?”
The starting point for any employment relationship is ‘what is the job?’ Raimondo says a job description is an important document that isn’t used enough. “When we do use it,” he said, “we often give it short shrift. That job description establishes the duties and expectations that you have for the position. It’s the starting point of accountability.”
The job description establishes the pay rate for the position, qualifications, duties and expectations. “It also tells us whether the position is exempt or non-exempt for payroll purposes,” said Raimondo. “Do we have to pay the person overtime and make sure they keep time records, or is this an exempt position where we don’t have to worry about those formalities and we can try to maximize whatever work we need for the salary that’s being paid?”
The job description should define the scope of the position, what you expect the employee to do, and provide a framework for employee evaluation in the future. Raimondo says the most important thing about a job description is that it is accurate. “Make sure you have a job title that matches the job,” he said. “That title should be descriptive of what the job is.”
When writing the job description, identify the essential functions of the job. “One of the fastest growing areas of litigation nationwide is in the area of disability discrimination,” said Raimondo. “In agriculture, a lot of positions require people to have a certain level of physical capacity to handle the job. Identifying the essential functions is a critical step of the job description. Can this person perform those essential functions?”
The determination of disability and discrimination law is ‘what accommodations does that person need for their disability in order to perform those essential functions of the position?’ “If there’s a reasonable accommodation that would enable the person to perform the essential duties of the position and there’s no undue hardship to the company, then that accommodation has to be granted,” said Raimondo. “Make sure the essential functions are identified in your job description because this will frame the interactive process you’re required to go through with a disabled job applicant or employee.” Raimondo reminds employers that they cannot disqualify someone for a position based on a disability.
Raimondo shared a story about a discussion relating to essential functions that came up during a presentation about disability and discrimination cases. “The first thing he (the plaintiff’s attorney) looks for is a letter or a handbook or a policy,” said Raimondo. “Something in writing from an employer to an employee saying ‘you need a full release from your doctor in order to return to work’. You can’t demand a full release from somebody. What you have to get from that person is what are their restrictions, how disabled are they, so that you can engage in an interactive process and determine what, if any, accommodations are needed for them to perform those essential functions. Then, are the accommodations reasonable, and is there undue hardship?” Raimondo noted that courts and administrative agencies tend to view reasonableness and undue hardship a lot differently than how business people view those factors. “The best protection you can give yourself is before a problem ever occurs,” he said. “Make sure those essential functions are identified.”
What are essential functions? “The position existed before that function,” said Raimondo. “If there are a limited number of other employees able to perform the function, or the function can be distributed to a limited number of employees, the transferability of that function is always an issue. So when you get that employee who says ‘I have a back problem and can’t lift more than 25 pounds’, the first thing the EEOC or court or investigating agency is going to look at in a disability discrimination inquiry is ‘was that something they could have had someone else do?’ If the function is highly specialized and the person was hired specifically for that function, the more likely that if the person can’t perform that function, then there’s nothing you can do to accommodate. Again, that’s why defining essential functions is so important.”
In creating the job description, the first step is ensuring that it’s accurate and realistic. The actual duties that the person performs should be things that define the job, not what the duties ‘should’ be.
“Sometimes we write job descriptions with a bit of wishful thinking as to what we hope the employee will grow into,” said Raimondo. “The job description is what the employee is going to be doing now. If we have some hopes for the employee to develop into a higher-level employee, that can happen and the job description can be rewritten down the road. But it needs to start with the actual duties that they perform, and should be kept current.” Raimondo says he likes to do on-board job descriptions with the employees themselves because it’s more accurate when the person doing the job participates in the process. “If they sign off on it and they participated in creating it, they can’t say ‘that’s not really what I do’ after they’ve put their signature on the document that defines the job.”
Once the job description has been written and checked to make sure it focuses on core, essential functions, review it with current employees who are currently doing the job. “If you’re filling a position and there’s a group of people who do the same job, before you create the job description that will guide that job, review it with the people who are doing the job and ask them if it’s still the way things are being done,” said Raimondo. “Has our process changed, and do you think this is an accurate reflection of the position we’re trying to fill? Have them sign off that it is an accurate job description. Again, we’re looking to create accuracy.”
Employers can set physical requirements for applicants. Raimondo refers to BFOQ, or bona fide occupational qualification, which means the requirements someone must have to do the job. “You can have physical requirements as long as they are specific and accurate as to how heavy, how frequent, how much standing, how much walking,” he said. “A lot of jobs in ag are physical, and it’s perfectly okay to list the physical demands of the job. What you can’t do is overreach and make them higher than what they should be.”
When it comes to knowledge, skills and experience for a position, think about requirements versus preferences. List what’s absolutely necessary as a prerequisite for the person to have the job, and other skills that would be preferred but not necessarily required. Raimondo noted that certain higher-level jobs may have specific educational or training requirements, such as in food safety.
Raimondo urges employers to make sure reporting relationships are documented from the start. “What is the internal chain of command?” he said. “In any kind of employment or labor dispute, the administrative agency or court will want to know who the person reports to. It also helps establish for yourself what those reporting chains are. You can make sure people follow that chain of command and respect it because you established it from the very beginning.”
Always check with an attorney in your state for guidance on specific aspects of the hiring process.
Part two will include information on searching for candidates and the interview process. Read about it here.