The human resources landscape is constantly changing. Dentists have ongoing questions about how to handle staff issues. Take this month's questions, for instance. Why is this dentist told so often that job descriptions are a good idea? And, does this practice need to pay for employee cell phones when the employees use them for work purposes?
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QUESTION: Our dental practice is a small business. I’m often told that we need job descriptions for each employee. I don’t think this will go over well with our team since we’re a very close group and such structure could be uncomfortable for people. Can you give me a good reason why we should create job descriptions?ANSWER: The biggest selling feature of a job description is to protect against claims regarding disabilities. As close as your staff may be, someone can become disabled for any reason at any time, and if things don’t go well in that process, it might result in a claim being filed against you. A recent ruling by the Eleventh Circuit Court of Appeals may help clarify this point.
The case Snead vs. Florida Agricultural and Mechanical University Board of Trustees No. 17-10338 (11th Cir. Feb. 21, 2018) involved the failure to accommodate a claim from a former police officer at Florida A&M University. In August 2013, the new police chief at the university changed the work schedule for officers from eight to 12 hours. Snead tried working the 12-hour shifts, but he experienced medical issues related to his high blood pressure.
After Snead’s doctor identified the change in work schedule as the cause of his medical problems, Snead asked to be returned to a work schedule of eight-hour shifts. The university rejected the request based in part on the fact that working 12-hour shifts was an essential function of the job. Snead subsequently retired from employment and brought suit against the university for failing to accommodate his request for an eight-hour work shift. A federal jury found in Snead’s favor and awarded him more than $250,000.
On appeal, the university argued that Snead was not a “qualified individual” within the meaning of the Americans with Disabilities Act (ADA) since he could not work a 12-hour shift, which was an essential function of that position. However, the Eleventh Circuit, relying on the language in the university’s job description for police officers, rejected that argument. The applicable job description contained a section listing the “essential functions” of the position, but that section did not mention shift length. Instead, a separate section of the job description titled “working hours” referenced the 12-hour work shift, but also stated that “based upon the needs of the departments, shifts may be changed.” Since shift length was not specifically referenced in the essential functions section of the position statement, the Court of Appeals found that the jury had reasonably determined that Snead was capable of performing all essential functions of the position.
Many employers require employees to work a specific shift schedule or, at times, even a rotating schedule. For employers who consider the ability to work a set schedule to be an essential function of the job, the Snead decision provides a cautionary tale. The Equal Employment Opportunity Commission (EEOC) has guidelines regarding ADA regulations that clearly indicate that a written job description is evidence of the essential functions of the job (see 29 C.F.R. § 1630.2(n)(3)).
However, just as an employer can use a well-drafted job description in its favor when defending against an ADA claim, a poorly-drafted or incomplete job description may lead to an adverse finding like it did in Snead. With that in mind, employers are strongly encouraged to regularly review job descriptions to ensure that they actually align with the essential functions of the job.
QUESTION: Our employees use their own smartphones to access company email, respond to clients, and generally conduct work from home. Sometimes this work is required, and sometimes it’s the employees’ own initiative, though our practice is aware of it. Are we obligated to pay for the cell phone expenses since they’re sometimes used for work-related issues?
ANSWER: There are two aspects in play here. One is employees working from home, whether required or not. You do not mention whether you pay employees for this time if it occurs. Wage and hour laws require payment for all time spent working by an employee, even when it’s their own initiative. If you do not want someone working when they’re not requested to do so, you may apply standard disciplinary measures (verbal and written counseling) to correct the issue, and you may terminate employment if the problem persists. You may not, however, refuse to pay them.
The other aspect is paying the expenses for cell phone usage. In general, it’s a good idea to pay for some or all of the expenses since they are work-related. However, individual state law determines payment for such matters. In California, for example, this is required per a ruling that went into effect about four years ago. This requirement does not exist in most states, but it’s always a good idea to double check your state laws just in case.
RECENT HUMAN RESOURCES QUESTIONS
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Human Resources Questions for Dentists is provided by Rebecca Boartfield and Tim Twigg of Bent Ericksen & Associates. Tim Twigg is president and Rebecca Boartfield is a human resources compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists deal successfully with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit bentericksen.com.
