FLSA Training

Human Resources October 2012

Including How to Write an Effective Position Description

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Introduction and Major Provisions

The Fair Labor Standards Act (FLSA) was passed in 1938

• It set standards for child labor, • Minimum wage and overtime pay. • Recordkeeping Standards• Since the passage of the Equal Pay Act in 1963 as part of the FLSA, the Act also

prohibits gender-based wage discrimination. • Sweeping changes were ushered in in 2004, and as a result many employees

changed exemption status under the new regulations due to increases in salary thresholds and/or changes in the various duties tests applicable to administrative, executive, professional, and outside sales exemptions.

• It is enforced by the Wage and Hour Division of the U.S. Department of Labor (DOL).

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Minimum Wage

• Covered, non-exempt employees must be paid not less than the federal minimum wage for all hours worked.

• The minimum wage is $7.25 per hour effective July 24, 2009.

• Georgetown’s Fair Wage rate for non-temporary employees working 30 hours a week or more is $12.00 per hour.

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FLSA Best Practices, What you Need to Know as a Supervisor

What can you do to avoid litigation? Understand the exemptions

Review duties of the jobs in your department

The determinative factor will typically be the duties test (i.e., what is the employee actually doing?) Then, make sure that employee is actually doing those things.

Update position descriptions frequently. Always a good idea to review them annually at performance evaluation period.

Keep documentation on any changes to your positions.

A 2-year statute of limitations generally applies to the recovery of back pay. In the case of a willful violation of FLSA, a 3-year statute of limitations may apply

Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees who are employed in a bona fide:

Executive;

Administrative;

Professional; or

Outside Sales capacity

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Hours Worked• Suffered or Permitted:

(Work not requested but suffered or permitted is hours worked) It is the employer’s duty to see that work is not performed if the employer doesn’t want the work performed. The employer cannot sit back and accept the benefits without compensating employees for those benefits

• Waiting Time: (Counted as hours worked when: Employee is unable to use the time effectively for his or her own purposes; and Time is controlled by the employer)(Not counted as hours worked when: Employee is completely relieved from duty; and time is long enough to enable the employee to use it effectively for his or her own purposes.)

• On-Call Time:(On-call time is hours worked when: Employee has to stay on the employer’s premises; Employee has to stay so close to the employer’s premises that the employee cannot use that time effectively for his or her own purposes.)(On-call time is not hours worked when: Employee is required to carry a pager, Employee is required to leave work at home or with the employer where he or she can be reached.)

• Meal and Rest Periods: ( Meal periods are not hours worked when the employee is relieved of duties for the purpose of eating a meal, rest periods of short duration (normally 5 to 20 minutes) are counted as hours worked and are compensable.)

• On-Call Time• Meal and Rest Periods• Training Time• Travel Time• Sleep Time

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Hours Worked Continued• Training Time:

(Time employees spend in meetings, lectures, or training is considered hours worked and must be paid, unless: attendance is outside regular working hours, attendance is voluntary, the course, lecture, or meeting is not job related, the employee does not perform any productive work during attendance.) All training time is work time if it occurs during an employee regularly scheduled hours.

• Travel Time: (Ordinary home to work travel is not work time, travel between job sites during the normal work day is work time, Special rules apply to travel away from the employee’s home area.) While away overnight on travel, a non-exempt employee will be compensated for all hours worked during the employee's regular working hours and in the regular workweek. (For example an employee boards a plane out of town at 8 am, their regular work start time. They attend a conference until 5:00, all hours up until 5:00 are compensable. After 5:00 the hours spent in the hotel and at the conference location are non- compensable hours.)

• Sleep Time:(Less than 24 hour duty, employee who is on duty for less than 24 hours is considered to be working even if allowed to sleep or engage in other personal pursuits. Duty of 24 hours or more: parties can agree to exclude bona fide sleep and meal periods.

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Salary Basis TestTo be salaried, one must regularly receives a predetermined amount of compensation each pay period (on a weekly or less frequent basis)

The compensation cannot be reduced because of variations in the quality or quantity of the work performed.

An employee is not paid on a salary basis if the employer makes deductions from the predetermined salary, for example, for absences caused by the employer or because of the operating requirements of the business. If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.

Must be paid the full salary for any week in which the employee performs any work

Need not be paid for any workweek when no work is performed

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Seven Permissible Deductions from the “no pay- docking” rule for Exempt Employees

Seven exceptions from the “no pay-docking” rule:

1. Personal absence from work for one or more full days

2. Sickness or disability absence from work for one or more full days

3. Jury Fee, Witness Fee or Military pay offsets

4. Penalties for violating safety rules of “major significance”

5. Unpaid disciplinary suspension for violations of workplace conduct rules

6. Proportionate part of full salary for time actually worked in the first and last weeks of employment

7. Unpaid leave under the Family and Medical Leave Act

8. Improper deductions from salaried employees can result in the loss of the exemption with overtime hours then due for any week the employee worked over 40 hours.

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Overtime Pay• Covered, non-exempt employees must receive one and one-half times the

regular rate of pay for all hours worked over forty in a workweek.• Workweek is 7 consecutive 24 hour periods (168 hours)• Regular Rate is determined by dividing total earnings in the workweek by

the total number of hours worked in the workweek.• The Regular Rate may not be less than the applicable minimum wage.• Bonuses: If an employee is paid an hourly rate and a bonus, the earnings

from both the hourly rate and the bonus are added together when determining the total straight time earnings. This amount is then divided by total hours worked to get the regular rate of pay for overtime purposes.

• One-half of this new rate is the premium amount due for each overtime hour.

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Example Fixed Salary for Fluctuating Hours Worked

Fixed Salary $420.00 (for all hours worked)

Week 1 Hours Worked 49Regular Rate $8.57 ($420 / 49

hours)Additional Half-Time Rate $4.29

Salary Equals = $420.009 hours x $4.29 = $38.61 (Overtime Due)Total Due = $458.61

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Example Fixed Salary for Fluctuating Hours Worked

Fixed Salary $420.00 (for all hours worked)

Week 2 Hours Worked 41Regular Rate $10.24 ($420 / 41 hours)

Additional Half-Time Rate $5.12

Salary Equals = $420.001 hour x $5.12 = $5.12Total Due = $425.12

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What the FLSA Does Not RequireThe FLSA is enforced by the Wage and Hour Division of the U.S. Department of Labor (DOL). Although FLSAapplies in all states, it permits states to regulate areas not covered by FLSA and to afford workers greaterprotections. Where state law and FLSA conflict, employers must follow the provision that is more favorableto the employee.

• Vacation, holiday, severance or sick pay.• Meal or rest periods, holidays off or vacations.• Premium pay for weekend or holiday work.• A discharge notice, reason for discharge, or immediate

payment of final wages to terminated employees.• Any limit on the number of hours in a day or days in a week

an employee at least 16 years old may be scheduled to work.• Pay raises or fringe benefits.

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All Employees are considered non-Exempt and Exemptions

• All employees are considered non-exempt unless the employer establishes that the employee’s position meets specific exemption criteria.

• Accordingly, the definition of a non-exempt employee is an employee who does not meet any one of the Fair Labor Standards Act’s exemption tests and is paid on an hourly basis and covered by wage and hour laws regarding minimum wage, overtime pay, and hours worked.

Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees who are employed in a bona fide:

Executive;

Administrative;

Professional; or

Outside Sales capacity

Certain computer employees may be exempt professionals under Section 13(a)(1) or exempt under Section 13(a)(17) of the FLSA. (Computer programmers, systems analysts, and similar professionals are considered exempt if they earn an hourly rate of $27.63 or more.)

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Three Part Test for the Exemption

Salary Level: The employee must be paid at least the regulatory minimum salary.

Salary Basis: The employee must be paid on a salary-rather than an hourly-basis, and the employer must make no deductions from that individual's pay that are not consistent with being paid a salary.

Job Duties: The employee's primary duties must be "exempt" in nature.

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But How Come my Employee isn’t Exempt??

• Employees must meet certain requirements under federal and state law to be classified as exempt. In order to be exempt, the job must require exercising discretion and making independent judgments that have significant impact on business operations. The employee is not merely applying guidelines to decision-making; but is free to act outside of guidelines. The requirement to make these independent judgments should be one of the employee’s most significant job duties, not something he or she occasionally does. All employees are expected to behave in a “professional” manner, but the work they perform does not necessarily qualify them to be classified as exempt. Many highly skilled, very responsible positions are classified as non-exempt.

• All Georgetown employees do important work. The value of that work has no bearing on the legal definitions which allow certain positions to be classified as exempt.

• How important the decision is, how much the manager/supervisor relies on that employee to make the decision, or how much the supervisor, department or Georgetown values the decisions made by the employee are not part of the governmental criteria which would allow the position to have exempt status. Decisions need to be of a very particular type, such as the authority to hire, fire, administer discipline, conduct performance reviews and recommend merit increases.

• My employee completes both exempt and non exempt work- The position must require spending at least 51% of the time in a week actually performing bona fide exempt work or the position must be classified as non-exempt. For example, if the job requires the employee to spend 40% of the time supervising others and 60% doing the same work as non-exempt subordinates, the job is non-exempt. If the position requires performing a variety of tasks and the time spent on exempt and non-exempt duties varies widely, the decision will always be in favor of making the position non-exempt.

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How Can I Tell the Difference?• Does the job require a “rule follower”, or a “rule maker”? If the employee usually follows procedures and policies instead

of having the authority to create new rules and policies or, to make exceptions to policy, the job is probably non-exempt.• Does the job require hands on work most of the time? If the employee spends most of the time operating equipment of

any kind (including computers) instead of spending most of the time planning, directing or being genuinely innovative (and use of equipment is secondary to his or her job) the position is likely non-exempt.

• Is the work complex technical work? If the job requires spending most of the time applying craft and technical skills, the job is probably non-exempt, even if those skills are very complex or highly technical. Some examples of highly technical non-exempt positions are videotape editors, computer programmers, accountants, lab assistants, graphic designers, and system analysts. There are special requirements for classifying computer positions as exempt.

• Does the position require spending most of the time supervising others? If the job requires the supervisor to spend 51% or more time doing the same work as non-exempt subordinates, the job is probably non-exempt. The number of employees supervised does not automatically qualify a position for exempt status—it depends on the duties and responsibilities of the job.

Examples of Duties in Higher Education that Are Non-Exempt• Advising/counseling students within established guidelines regarding financial aid, admission and other academic issues• Implementing, monitoring, and giving updates on projects• Writing correspondence, news articles, speeches, reports or proposals• Performing experiments and recording results according to established protocols• Designing Web pages to meet user needs• Evaluating the need for equipment upgrades and selecting new equipment

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Difficult Duties to Distinguish Between

The following are a few examples of responsibilities that are appropriately assigned to non-exempt positions, which supervisorsmistakenly believe might qualify the position to be exempt.

• Programming within existing programs (e.g., VBA, Flash, ASP, .Net, etc.)• Coordinating or managing office operations without significant supervisory responsibilities• Tracking, analyzing, auditing and reconciling financial performance within established parameters• Designing publications, both printed and online, to specifications• Performing administrative and clerical duties, such as bookkeeping, billing, filing, typing, and operating business machines,sorting and distributing mail, making travel arrangements• Coordinating events • Selecting vendors and monitoring their performance and products• Advising employees regarding compliance with policies and procedures• Determining if a research subject is eligible for a program, experiment etc.• Making admission decisions for undergraduate and/or graduate programs in accordance with admission guidelines• Administering an assigned budget and providing input for future budget requests• Installing upgrades, repairing, and maintaining computer systems and work stations and Setting up, assembling, and installing

ITequipment and troubleshooting issues

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Salary Tests• Employees who are paid less than $23,600 per year ($455 per week) are

nonexempt. Must meet the minimum salary without prorating.• (Employees who earn more than $100,000 per year are almost certainly exempt if

they are performing at least one exempt duty.)

• The highly compensated test is not available for: Non-management production line workers; Non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers; Other employees who perform work involving repetitive operations with their hands, physical skill and energy would all be non exempt.

– Biweekly: $910– Semimonthly: $985.83– Monthly: $1,971.66

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Executive ExemptionJob duties are exempt executive job duties if the employee:

• Regularly supervises two or more other employees.• Has management as the primary duty of the position.• Has genuine input into the job status of other employees (such as hiring, firing, promotions,

or assignments).• Supervision means what it implies. The supervision must be a regular part of the employee's

job, and must be of other employees. Supervision of non-employees does not meet the standard. The "two employees" requirement may be met by supervising two full-time employees or the equivalent number of part-time employees. (Two half-time employees equal one full-time employee.)

• "Mere supervision" is not sufficient. In addition, the supervisory employee must have "management" as the "primary duty" of the job. The FLSA Regulations contain a list of typical management duties.

• Responsible for interviewing, selecting, and training employees.• Setting rates of pay and hours of work.• Maintaining production or sales records (beyond clerical).

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Executive Exemption Cont.• Appraising productivity; handling employee grievances or complaints, or disciplining

employees.• Determining work techniques.• The final requirement for the executive exemption is that the employee have genuine input

into personnel matters. This does not require that the employee be the final decision maker on such matters, but rather that the employee's input is given "particular weight." Usually, it will mean that making personnel recommendations is part of the employee's normal job duties, that the employee makes these kinds of recommendations frequently enough to be a "real" part of the job, and that higher management takes the employee's personnel suggestions or recommendations seriously.

• Planning the work.• Apportioning work among employees.• Determining the types of equipment to be used in performing work, or materials needed.• Planning/creating budgets for work• Monitoring work for legal or regulatory compliance.• Providing for safety and security of the workplace.

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FLSA Terms to Consider• Customarily and Regularly is a frequency that must be greater than occasional but which, of course, may

be less than constant• Includes work normally and recurrently performed every workweek• Does not include isolated or one-time tasks

• Particular Weight: factors include, but are not limited to:– Whether it is part of the employee’s job duties to make suggestions and recommendations– The frequency with which suggestions and recommendations are made or requested– The frequency with which the employee’s suggestions and recommendations are relied upon

• Concurrent performance of exempt and nonexempt work does not automatically disqualify an employee from exemption

• Exempt executives generally decide when to perform nonexempt duties and remain responsible for the success or failure of business operations

• Nonexempt employees generally are directed by a supervisor to perform the exempt work or perform the exempt work for defined time periods

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Learned Professional Exemption• The job duties of the traditional "learned professions" are exempt. These include lawyers, doctors, dentists, teachers,

architects, pharmacists, accountants, actuaries, chefs, certified athletic trainers, biologists, chemist, physical scientists and clergy. Also included are registered nurses (but not LPNs), accountants (but not bookkeepers), engineers (who have engineering degrees or the equivalent and perform work usually performed by licensed professional engineers), actuaries, scientists (but not technicians), pharmacists, and other employees who perform work requiring "advanced knowledge" similar to that historically associated with the traditional learned professions.

• Professionally exempt work means work which is predominantly intellectual, requires specialized education , and involves the exercise of discretion and judgment; and work requiring invention, imagination, originality or talent in a recognized field artistic or creative endeavor. Professionally exempt workers must have education beyond high school, and usually beyond college, in fields that are distinguished from (more "academic" than) the mechanical arts or skilled trades. Advanced degrees are the most common measure of this, but are not absolutely necessary if an employee has attained a similar level of advanced education through other means (and perform essentially the same kind of work as similar employees who do have advanced degrees).

• Some employees may also perform "creative professional" job duties which are exempt. This classification applies to jobs such as actors, musicians, composers, writers, cartoonists, and some journalists. It is meant to cover employees in these kinds of jobs whose work requires invention, imagination, originality or talent; who contribute a unique interpretation or analysis.

• Identifying most professionally exempt employees is usually pretty straightforward and uncontroversial, but not always the case. Whether a journalist is professionally exempt, for example, or a commercial artist, will likely require careful analysis of just what the employee actually does.

• Traditional Non-exempt Professionals include: Licensed practical nurses, accounting clerks who perform a great deal of routing work, cooks, paralegals and legal assistants.

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Learned Professional Exemption Cont.

• Predominantly intellectual in character• Includes work requiring the consistent exercise of discretion and judgment• The advanced knowledge is generally used to analyze, interpret or make deductions from

varying facts or circumstances• Not work involving routine mental, manual, mechanical, or physical work• Cannot be attained at the high school level• Specialized academic training is a prerequisite for entering the profession

Best evidence that an employee meets this requirement is possession of the appropriate academic degree

• The learned professional exemption is not available for occupations that may be performed with:

– The general knowledge acquired by an academic degree in any field– Knowledge acquired through an apprenticeship– Training in the performance of routine mental, manual, mechanical or physical

processes• The exemption also does not apply to occupations in which most employees acquire skill by

experience.

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Learned Professional Exemption Cont

• The learned professional exemption applies to any employee who holds a valid license or certificate permitting the practice of medicine Learned Professional Exemption

– Osteopathic physicians -Law -Pharmacy– Podiatrists -Accounting -Theology– Dentists -Architecture -Physical/Biological/Chemical Sciences– Optometrists -Engineering -Actuarial Computations

• The exemption is also available to an employee who holds the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program

• Registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption

– Many registered nurses, however, are paid by the hour, not on a salary basis, and thus are entitled to overtime pay

• Licensed practical nurses generally do not qualify as exempt learned professionals.• Financial Services positions may be exempt if the work includes collecting and analyzing financial data

including assets, investments, debts or liabilities, advising clients on the advantages or disadvantages of financial products.

• Accounting clerks, junior accountants, and other accountants who perform a great deal of routine work that is not an essential part of, and not necessarily incidental to, any professional work that they may do are not exempt

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Learned Professionals in Higher Education

Coaches

Faculty engaged as teachers are generally exempt

Non-faculty member bona fide executive employee

Athletic Trainers

Completed 4 academic years of pre-professional and professional study

Curriculum accredited by Commission on Accreditation of Allied Health Education Programs

Certified by Board of Certification of National Athletic Trainers Association

Assistant Athletic Trainer

1998 DOL Opinion Letter: Non-exempt

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Exempt Graduate AssistantsGraduate Teaching Assistants

Assigned class or laboratory section for purpose of instruction

Should still qualify for exemption

Graduate Academic Assistant

Not in charge of class or lab

Answers students’ questions and assists them

May also qualify for exemption as a teacher

Graduate Research Assistant

Academic relationship, not a employer-employee relationship

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Positions that Do Not Meet the Learned Professional ExemptionsAccounting clerks and bookkeepers who normally perform a great deal of routine work

Cooks who perform predominantly routine mental, manual, mechanical or physical work

Paralegals and legal assistants

Engineering technicians

The key to determining which jobs meet the Learned Professional exemption is to look to the specific educational requirement. Keep in mind that it must be both "prolonged" and "specialized." For example: most paralegals have a college degree, but not specialized. Most paralegals also have some specialized certificate, but the training to receive it is not prolonged, hence paralegals do not satisfy the professional exemption. The same is true of many human resource professionals. Being a professional in the business sense does not automatically translate into being a "professional" in the legal sense. Unfortunately, the regulations do not provide substantial guidance on what constitutes a "prolonged course" relative to specialized intellectual instruction. As a practical matter, anything less than a four-year specialized program is at risk. However, just because these professionals don't fall within the "professional" exemption does not mean that they are nonexempt. Depending on their job responsibilities, HR professionals may fall within the administrative or executive exemption. Others, for example, recruiters who screen applications for predetermined requirements, or benefits coordinators who generally collect, submit and file data, are generally considered non-exempt. Most paralegals will not fall within the administrative exemption because they will not have the requisite discretion and independent judgment.

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Exempt Administrative Duties• The most elusive and imprecise of the definitions of exempt job duties is for exempt "administrative" job

duties.• The Regulatory definition provides that exempt administrative job duties are:

• (a) office or non-manual work, which is(b) directly related to management or general business operations of the employer or the employer's customers, and (c) a primary component of which involves the exercise of independent judgment and discretion about (d) matters of significance.

• The administrative exemption is designed for relatively high-level employees whose main job is to "keep the business running." A useful rule of thumb is to distinguish administrative employees from "operational" or "production" employees. Administrative employees provide "support" to the operational or production employees. They are "staff" rather than "line" employees. Examples of administrative functions include labor relations and personnel (human resources employees), payroll and finance (including budgeting and benefits management), records maintenance, accounting and tax, marketing and advertising (as differentiated from direct sales), quality control, public relations (including shareholder or investment relations, and government relations), legal and regulatory compliance, and some computer-related jobs (such as network, internet and database administration.

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Independent JudgmentThe comparison and evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered

Must be exercised with respect to “matters of significance,” which refers to the level of importance or consequence of the work performed

Decisions and recommendations may be reviewed at a higher level and, upon occasion, revised or reversed

• Exercising “discretion and independent judgment” involves an employee comparing and evaluating possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The term “ matters of significance” refers to the level of importance or consequence of the work performed. In determining whether or not an employee exercises discretion and independent judgment, all the facts involved in the particular employment situation must be considered. The term implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed, and occasionally reversed, at a higher level. An employee may make recommendations for action rather than actually taking action and still qualify as exercising discretion and independent judgment.

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Independent Judgment ContinuedConsider whether an employee:

Formulates or implements policies or operations

Conducts major assignments

Performs work that affects departmental operations

Has authority to commit the University or department

Has authority to waive or deviate from established practices

Has authority to negotiate and bind the University

Provides expert advice to management

Is involved in planning long- or short-term departmental objectives

Investigates and resolves matters of significance

Handling complaints, arbitrating disputes or resolves grievances

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Exempt Administrative Duties Cont.

• To be exempt under the administrative exemption, the "staff" or "support" work must be office or non-manual, and must be for matters of significance. Clerical employees perform office or non-manual support work but are not administratively exempt. Nor is administrative work exempt just because it is financially important, in the sense that the employer would experience financial losses if the employee fails to perform competently. Administratively exempt work typically involves the exercise of discretion and judgment, with the authority to make independent decisions on matters which affect the business as a whole or a significant part of it.

• Questions to ask include whether the employee has the authority to formulate or interpret company policies; how major the employee's assignments are in relation to the overall business operations of the department (buying paper clips versus buying a fleet of delivery vehicles, for example); whether the employee has the authority to commit the employer in matters which have significant financial impact; whether the employee has the authority to deviate from company policy without prior approval.

• An example of administratively exempt work could be the buyer for a department store. Performs office or non-manual work and is not engaged in production or sales. The job involves work which is necessary to the overall operation of the store -- selecting merchandize to be ordered as inventory. The work is important since having the right inventory is crucial to the well-being of the store's business. Involves the exercise of a good deal of important judgment and discretion, since it is up to the buyer to select items which will sell in quantity and at sufficient margins to be profitable.

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Exempt Administrative Duties Cont

• Clerical work may be administrative, but it is not exempt. Most administrative assistants, for example, may accurately be performing administrative work, but their jobs are not usually exempt. Similarly, filing, filling out forms, entering data into a database or system and preparing routine reports, answering telephones, making travel arrangements, working on customer "help desks," and similar jobs are not likely to be high-level enough to be administratively exempt. Many clerical workers do in fact exercise some discretion and judgment in their jobs. However, to "count" the exercise of judgment and discretion must be about matters of considerable importance to the operation of the enterprise as a whole.

• Routinely ordering supplies (and selecting which vendor to buy supplies from) is not likely to be considered high- enough to qualify the employee for administratively exempt status. Some administrative assistants may indeed be high-level, administratively exempt employees (for example, the Administrative Assistant or Executive Assistant to the CEO/Dean/Provost who really does "run his/her life"), while some employees with lofty titles (e.g., "administrative assistant") may really be performing nonexempt clerical duties.

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ManualsExempt employees may use manuals, guidelines or other established procedures if they:

contain or relate to highly technical, scientific, legal, financial or other similarly complex matters

that can be understood or interpreted only by those with advanced or specialized knowledge or skills

Employees are not exempt if they use manuals to apply well-established techniques or procedures within closely prescribed limits, or other sources within closely prescribed limits to determine the correct response to an inquiry, problem or set of circumstances

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Typical Administrative Management Duties

• Tax• Finance• Accounting• Planning and Controlling Budgets, Budgeting• Auditing• Insurance• Quality Control• Purchasing• Procurement• Advertising• Marketing• Research• Safety and Health• Human Resources• Employee Benefits• Labor Relations• Public and Government Relations• Legal and Regulatory Compliance• Computer Network, Internet and Database Administration

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Discretion and Independent Judgment

• The comparison and evaluation of possible courses of action or making a decision after the various possibilities have been considered

• Must be exercised with respect to “matters of significance,” which refers to the level of importance or consequence of the work performed

• Decisions and recommendations may be reviewed at a higher level and, upon occasion, revised or reversed• Factors included:

– Whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices

– Whether the employee carries out major assignments in conducting the operations of the business– Whether the employee performs work that affects business operations to a substantial degree, even if employee’s

assignments are related to operation of a particular segment of the business

• Factors included:– Whether the employee has authority to commit the employer in matters that have significant financial impact– Whether the employee has authority to waive or deviate from established policies and procedures without prior

approval– Whether the employee has authority to negotiate and bind the University/Department on significant matters– Whether the employee provides consultation or expert advice to management

• Factors included:– Whether the employee is involved in planning long- or short-term business objectives– Whether the employee investigates and resolves matters of significance on behalf of University/department– Whether the employee represents the University in handling complaints, arbitrating disputes or resolving grievances.

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Discretion and Independent Judgment

• Discretion and independent judgment does not include:– Applying well-established techniques, procedures or specific standards described in manuals or other

sources– Clerical or administrative work– Recording or tabulating data– Performing mechanical, repetitive, recurrent or routine workUse of Manuals

• Exempt employees may use manuals, guidelines or other established procedures if they:– contain or relate to highly technical, scientific, legal, financial or other similarly complex matters– that can be understood or interpreted only by those with advanced or specialized knowledge or skills

• Employees are not exempt if they use manuals to apply well-established techniques or procedures within closely prescribed limits

Financial Services• May be exempt if duties include:

– Collecting and analyzing information regarding investments , budgets, income or debts– Determining which financial products best meet needs given the financial circumstances– Recommending the advantages and disadvantages of different financial products– Marketing, servicing or promoting the employer’s financial products

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Discretion and Independent Judgment

An employee whose primary duty is selling financial products does not qualify for the administrative exemption

• Human resource managers who formulate, interpret or implement employment policies generally meet the administrative duties requirements

• Human Resources clerks who “screen” applicants to obtain data regarding minimum qualifications and fitness for employment generally are not exempt administrative employees

• An employee who leads a team of other employees assigned to complete major projects will be exempt.

• Executive assistant or administrative assistant to a business owner or senior executive of a large business who has delegated authority regarding matters of significance will be exempt

• Management consultants who study the operations of a business and propose changes in the organizationwill be exempt

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Admissions Recruiters/Enrollment Counselors

• Admissions Recruiters are generally not exempt under the academic administrative exemption. 29 U.S.C. § 541.204. The Preamble to the new regulations explains that the DOL Opinion Letters issued February 19, 1998 and April 20, 1999 under the current regulations elaborate on the condition that the academic administrative exemption is limited to employees engaged in work relating to the academic operations and functions of a school, rather than work relating to the general business operations of the school. Thus, Enrollment Counselors who engage in general outreach and recruitment efforts to encourage students to apply to the school do not qualify for the academic administrative exemption because their work is not sufficiently related to the school’s academic operations. The April 20, 1999 Opinion Letter noted that, depending upon the employee’s duties, they might qualify for the general administrative exemption because their work related to the school’s general business operations and involved work in the nature of general “sales” promotion. The Preamble states specifically that, consistent with DoL Opinion Letters issued under the current regulations, Admissions Counselors were not included as an example of an exempt academic administrative employee.

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Academic Administrative DutiesThe primary duty is the performance of office or non-manual work directly related to academic instruction or training in an educational institution

Examples that do qualify:

College/University Administrators involved with faculty and curriculum

Department Administrators

Lab Administrators

Academic Counselors – advising students on academics, administering testing• Department heads responsible for the various subject matter departments; • Academic Counselors• Assistants responsible for administration of curriculum, quality and methods of

instructing, measuring and testing the learning potential and achievement of students, establishing and maintaining academic and grading standards, and other aspects of a teaching program.

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Academic Positions that do not meet the exemption

Social Workers

Psychologists

Food Service Managers

Dieticians

Enrollment/Admissions Counselors (Enrollment Counselors who engage in general outreach and recruitment efforts to encourage students to apply to the school do not qualify for the academic administrative exemption because their work is not sufficiently related to the school’s academic operations.)

• DOL Opinion Letter noted that, depending upon the employee’s duties, they might qualify for the general administrative exemption because their work related to the school’s general business operations and involved work in the nature of general “sales” promotion. The Preamble states specifically that, consistent with DOL Opinion Letters issued under the former regulations, Enrollment/Admissions Counselors were not included as an example of an exempt academic administrative employee.

Recruiters

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Creative Professionals• The primary duty must be the performance of work requiring invention, imagination,

originality or talent in a recognized field of artistic or creative endeavor.• The recognized fields of artistic or creative endeavor include music, writing, acting and the

graphic arts. Thus, the requirements are generally met by actors, musicians, composers, conductors, soloists, certain painters, writers, cartoonists, essayists, novelists, photographers and others as set forth in the regulations.

• Journalists do not meet the educational requirements for the learned professional exemption. However, journalists, reporters and other employees of newspapers, magazines, television and other media may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent.

• Graphic Artist performing work that is original and creative, could qualify for the professional exemption, while a Graphic Arts Technician who engages in the drawing or reproduction from flat illustration, operating an offset duplicating machine to reproduce copies and who performs otherwise technical duties generally would not meet the conditions for exemption, notwithstanding that this technician may well possess the training for original artistic production.

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Computer Employee ExemptionTo qualify for the computer employee exemption, the following tests must be met:

• The employee must be compensated on a salary not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour; The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;

The employee’s primary duty must consist of: 1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; 2) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; 3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or 4) A combination of the aforementioned duties, the performance of which requires the same level of skill.5) An employee in UIS might also meet the Administrative exemption depending on the nature and duties of their position, particularly if there is extensive project management responsibilities, so careful examination of both exemptions might be prudent.

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Computer Exemption Continued• Employees whose work is highly dependent upon, or facilitate by, the use of

computers and computer software programs (e.g., webmasters, engineers, drafters and other skilled computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in the primary duties test are also not exempt under the computer employee exemption.

• Hardware repair and extensive use of computers and software are not considered exempt activities.

• Help Desk employees are typically non-exempt.

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Youth Employment• Sixteen and seventeen year olds may be employed for unlimited hours in any occupation

other than those declared hazardous by the Secretary of Labor.

• Fourteen and fifteen year olds may be employed outside of school hours in a variety of non-manufacturing and non-hazardous jobs for limited periods of time and under specified conditions. They can not work more than 3 hours on a school day, or 18 hours in a week that school is in session. More than 8 hours in a day that school is not in session and no more than 40 hours in a week when school is not in session. Or before 7 a.m. or after 7 p.m. on any day, except from June 1st through Labor Day, when nighttime work hours are extended to 9 p.m.

• Children under fourteen years of age may not be employed in non-agricultural occupations covered by the FLSA.

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Writing a Good, Accurate and Compliant Position Description

Accurate position descriptions are the blueprints of a job, clearly define the role, set the expectations and describe the qualifications necessary to successfully perform the job. They also provide the basis for job evaluation, wage and salary surveys, and help form the foundation for an equitable wage and salary structure. They also provide a basis from which to determine whether a disabled applicant is otherwise qualified for the job and, if so, what accommodation should be made to let the applicant perform the essential functions of the position.

A position description is not a procedure manual. If you start enumerating tasks, you have taken it one step too far. Too many details render it harder to identify important information and more difficult for the job description to remain current . Too many details leads to the trap of too narrowly defining positions, rather than jobs, and ultimately creating a huge administrative burden of maintaining unnecessary descriptions and rendering the attitude “that’s not my job.”

Well drafted position descriptions make it possible to identify common job elements and requirements, which in turn helps clarify which jobs really are similar and which jobs warrant different pay levels because they require different levels of skill, knowledge and responsibility, or because they contribute to the University goals in differing ways. Legal issues certainly arise here ( ensuring employees performing jobs with similar skills, effort and responsibility) are compensated equitably, so inflating position descriptions is a dangerous practice.

• Accurate position descriptions provide a basis for clarity regarding recruitment, work planning, competency development, classification determination and placement, performance evaluation, and compensation.

• Help clarify and align with the University’s mission & values. Establish performance requirements. Determine classification and benchmark to the external job market. Explore reasonable accommodations. Comply with legal requirements related to equal opportunity, equal pay, overtime eligibility.

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Reasons for Accurate and Current Position Descriptions

• Position descriptions have the potential to become the subject of contention, including grievances and/or litigation. Therefore it is important they accuracy be maintained. Some jobs are dynamic, changing rapidly and extensively (due to technological or organizational considerations); these positions should be reviewed often.

• Always, Always, Always focus on the work not the person! Many times supervisors start out writing a position description to attain a certain grade, FLSA status or salary, each of which is WRONG.

• After evaluation, a position description will be placed into a Job Profile, if one does not exist, please contact me to create a new one. Very critical to not place dissimilar positions in the same Job Profile.

• Signatures on the Position Description form documented agreements between the employee and the supervisor that the information is an accurate and up-to-date accounting of the duties, effort, and qualifications related to the position. In addition, the supervisor can include supplemental information, or clarification, related to the description in order to provide clarification and context.

• Do not include future responsibilities; the general rule is that a function must have been performed for a period of 3 months before being included in a job description.

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Questions to ask as you draft a position description

– What is the required output level for the job?– What are the expected results?– What is the relationship between each task? If there is a task sequence or a task hierarchy, document this order.– What are the necessary physical and mental requirements needed to accomplish the job?– Is specific training necessary? Document what required experience, certificates, and education are necessary.– What are the safety and quality control measures in place? Document potential workplace hazards and the measures taken to

eliminate them. – What happens if a task is not performed appropriately?– What level of responsibility is necessary?– What happens if the end result is not achieved?– Are there specified time frames for completing a task?– Does the job necessitate completing tasks in multiple, alternate, or off-site locations?– What conditions are required for task completion? Conditions include environmental (hot/cold, inside/outside, noise level, lighting,

ventilation, etc.) and social (works with the public, works under deadlines, works alone, etc.).– Is the job accessible (parking, entrances and exits, doors)?– Is supervision a key aspect of the position?– What is the financial role this position will play and what dollars will the role have impact over?

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Job Analysis (Desk Audit)• A job analysis is an exercise designed to systematically obtain, categorize, and document all

relevant information about a job.• Typically done in the department with the goal of deterring:• What systems, programs software, hardware, and equipment the role will utilize• Types of communication common for the role; exchanging information, interpreting

information, conveying difficult information, presenting information to groups.• The job’s relative importance in comparison with other jobs in the department• How much time is spent on each task.• Problems encountered, easily solved, require research and interpretation of policy.• Typical mental processing required, types of decisions made, reasoning required• What happens if goals and objectives are not met? What are the repercussions of poor

performance.• Knowledge of the concepts, principles, theories, and methods applicable to planning,

and designing required for the position to be completed successfully.

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Aspects of Georgetown’s Position Descriptions

• Position Summary: The job summary is brief narrative paragraph that gives a basic overview of the job. It broadly describes the scope and key duties of the job and may state the purpose of the job. The summary should be a brief description of the general nature and purpose of the job and should remain consistent with the rest of the job description. The job summary should provide enough information to differentiate the major function and activities of the job from those of other jobs.

• Organizational Characteristics: It is important to describe the nature of the role and how the role fits into the department or organizational unit. An organization chart is always advisable so a visual description of the department is understood.

• Principal Accountabilities: This is one of the most important sections of a job description. It is a listing of the major duties assigned to the job. This section can play an important roll in helping ensure compliance with the Americans With Disabilities Act (ADA) and determining FLSA status and position classification. Not every job duty that will be performed by the incumbent needs to be listed in this section. You should focus on the required outcome of the job’s tasks, rather than on the tasks themselves.

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Georgetown University Position Description Cont.

Dimensions • Supervision: List the number of people supervised, including students, and reference if

the supervision is direct, supervises daily work, or indirect where supervision is a team or departmental shared task. Consider how much time the position spends supervising others.

• Leadership: Select the level most often, routinely encountered on the job, not the one that occasionally, or periodically applies.

• Complexity of Work: Please ensure that this is properly reflected. Very complex is selected if the work involves complicated bodies of knowledge and functions that differ substantially from each other, and require regular integration for the job to be completed successfully. Normally a VP or top departmental administrator role will have this level selected.

• Freedom of Action: This describes the freedom the position has to make decisions and take conclusive action. The nature and frequency of contact with the immediate supervisor, as well as the level and extent that work instructions, precedence, procedures, policy or guidelines are provided is factored in here. Think of the mental processes, reasoning, planning, decision making that are inherent in the job

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Georgetown University Position Description Cont.

• Impact: Describe the impact this position has on the department and the University as a whole. Consider and include budget impact/accountability, regulatory compliance, student impact, property, program, resource retention impact and the impact errors or poor decisions can create.

• Interactions: Describe the individuals or groups of individuals inside and outside the University with whom this position communicates or collaborates with on a regular basis. Indicate the nature of the interaction including the type of information shared as well as the frequency of the interaction.

• Fiscal Responsibility: Describe the dynamic dollars (those dollars reflecting change year to year, vs. “static” dollars such as investments in equipments) amounts that this position has significant impact over. Salary and inventory dollars managed are included here. Describe the contributory impact this role has on departmental dollars. Does the role create, budget and apportion departmental dollars? Does the position make decisions on how the money is spent, and resolve problems or issues about the money and it’s allocation? Is this role evaluated on how this money is managed? Unlike a position that accounts for, reconciles or ensures bills are correct etc. has a contributory or value added impact over said dollars.

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Writing a Good Position Description Cont.

• Under the ADA, a job applicant can only be evaluated on his or her ability to perform the essential job functions. These are the duties for which the job exists, and, if they weren’t performed, there would be no real need for the job. In addition to the essential job functions, most jobs include marginal functions. These are the duties that, while beneficial to the employer, are not truly essential to the job. While the ADA does not prohibit inclusion of marginal job functions in a job description, they cannot be considered in evaluating an individuals ability to do the job. Many employers separate the essential job functions from the marginal functions on the job description. In determining if a job duty is essential, the following should be considered :

• Is the employee actually required to perform the duty? • Did former employees in this job perform the duty? • Does the position exist to perform this specific task? • How many employees are available to perform this duty? • How much time is spent performing the duty? • What would be the consequences if the duty were not performed by this job?

Under this section be sure to review what tasks have been deemed Essential or Non-essential and as an example:Two employees could have the exact same duty in different departments, and for one, the duty would be essential and for the other, it would not. For example, the person who has to answer the phone during the receptionist's lunch hour. In an office with 100 administrative employees, that's not an essential function, but if there is only one person who can do this, then it’s essential.

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Job Descriptions Cont.• Essential functions should never include the following language, "Performs other duties as

assigned." If it is an essential function, it needs to be described.• To avoid exposure under the ADA, it is critical that the job description language focuses on

the results and not the methods. While performing essential functions is fundamental, one particular manner of performance is often unnecessary, unless doing otherwise would create an undue hardship. It is often possible for employees to perform the same functions in different ways. For example, it is superfluous to include "answers the telephone in a pleasant and friendly manner"; "answers the telephone and directs callers to the appropriate party" is to the point. It is assumed that no department wants to deter callers with an unpleasant demeanor.

• Do not include language that is biased toward employees with disabilities. Some examples of unbiased language are as follows:

• "Communicates" rather than "talks" or "hears" • "Moves" or "transports" rather than "carries"• "Determines" or "identifies" rather than "sees"• "Operates" rather than "feels”

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Inflationary EffectBeware of the inflationary effect that can occur when describing the extent ofresponsibilities and the scope each task. For Example the differences between the

following:• collect vs. compile data• compile vs. analyze data • execute vs. decide an action• decide vs. approve an action• manage vs. oversee• budget vs. reconcile• draft vs. edit to collect data is to gather or extract information or materials from a number of persons or sources- asopposed to compile data which is to put together information or assemble data in a new form- asopposed to analyze data which is to identify the elements of a whole and critically examine and relatethese component parts separately in relation to the whole. To execute is to put into effect orcarry our methods, plans, etc.- as opposed to decide which is to select a course of action, as opposedto approve which is exercise final and decisive authority, causing action to use money, labor, materials,or equipment.

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Writing a Good, Accurate and Compliant Job Description

• In listing job duties, each should begin with an action verb followed by additional information that further defines the specific duty. Examples of action verbs include sweeps, drafts, enters data, prepares, reviews, assembles, plans, organizes and drives. As a general rule, the term “responsible for” is considered to be too vague in that it does not describe a specific duty and its use in writing job duties is discouraged.

• Physical Requirements: This section describes the actual physical actions necessary to perform the job. Such things as lifting, climbing, standing, bending, walking, talking, hearing, seeing, handling and carrying are examples of physical activities that may be required in a job. To help ensure compliance with ADA, physical requirements should be stated in specific terms. For example, rather than just giving the requirement as “lifting,” a more descriptive phrase would be, “lifting 25 pounds of sand to a height of three feet.” In describing physical requirements, such things as amount of exertion involved, frequency of the action, and length of time spent performing the action should be considered.While it is important that physical requirements be accurately stated, it is equally important that they not be inflated. Overstating physical requirements could discriminate against disabled applicants and thus be in violation of the ADA.

• Use action verbs in the present tense. Manage, Identify, Determine, Measure, Apply, Compute• Ensure the explanatory phrase adds meaning and clarifies the why, how, where or how often.• Spell out acronyms• Avoid words that might allow for misinterpretation such as ‘sometimes’, ‘several’, ‘high level’, ‘occasionally’, etc.

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Writing a Good, Accurate and Compliant Position Description

• Working Conditions: In this section, the environment in which the employee will be working is described along with any other conditions which may affect the desirability of the job. Such things as weather extremes, extensive travel, walking, odors, hazards, and other related factors are included. It is important to thoroughly list both positive and negative working conditions. If the applicant accepts the job with a full understanding of the environment in which he or she would be working, there is a better chance that the employee will be able to deal with the adverse working conditions

• Minimum Qualifications: Here we look at the qualifications an applicant needs to be considered for the position. This section is usually divided into education; experience; special skills, knowledge, and abilities and licenses and certifications. The qualifications should reflect the minimum requirements necessary to do the job. Inflated requirements could create disparate impact discrimination against certain groups of individuals protected under federal legislation and could lead to lawsuits. If additional qualifications would be beneficial in performing the job, these should be indicated as “preferred.”

• List any required or preferred Licenses/certificates required

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Problems with Poorly Drafted Position Descriptions

• Inflated job titles that do not accurately represent the job. Be on the look our for inflation in titles. • Failure to list all essential job functions • Listing of marginal duties as essential functions • Failure to accurately describe working conditions • Setting job requirements and physical requirements higher than the job actually require

• Setting Educational requirements too high, College degree for all positions. Discriminatory practice. Inquire why degree is necessary, what body of learned knowledge is necessary for performance on the job.

• Not accepting any equivalencies• Not accurately or over conveying the contributions the role has to the department, or University.

As example a decision reached in Griggs v. Duke Power Co. established that an employer cannot require a higher qualification from an applicant than what the job requires in its description. An employer or an employee may argue that industry standards require that position to have a more advanced degree, but employers cannot legally refuse to hire someone because they fail to meet the elevated standard.

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TitlesImportant that titles clarify and define the management role, and conveys appropriate message to the outside world.Ideal if they identify with market positions, and they should have a clear definition of authority that accurately reflectsResponsibilities. Title inflation very prolific on college campuses, so a good rule of thumb:

• Senior Director - Plans and directs administrative and operational activities with broad, cross functional responsibility for several organizational units.

• Director - Administrator of an organizational unit and/or function with broad responsibility. This assumes full financial and operating accountability and direction over multiple levels of employees.

• Associate Director - Provides comprehensive management assistance to the Director in all aspects of the unit’s operations; may act as the Director in periods of absence.

• Assistant Director - Provides management assistance to the Director in one or more aspects of the unit’s operations; may act as the Director in periods of absence

• Manager - Manager of subordinate employees in a functional unit area. This assumes the creation and monitoring of unit objectives, and evaluating employee performance, setting priorities, assigning tasks, managing assigned budget and other resources to accomplish unit objectives.

• Assistant Manager - Assists the manager of the unit in one or more aspects of unit management.• Manager of Projects/Programs - Manage all aspects of a project or program that may or may not involve the administrative

supervision of staff.• Operations Manager - Manager who functions as the management representative who coordinates budgets, logistic issues,

and overall coordination of a unit’s business functions.• Supervisor - Functional and/or administrative supervisor of employees with moderate authority for decisions and

accountability for results. This assumes authority to recommend the hire, evaluations, discipline, pay, and/or assign work.• Coordinator - Coordinate the organizing, dissemination of information, programs, and projects. Functional coordination

over work assignments may be exercised.

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Creating Essential Functions of the Job

First, make a list of tasks necessary to perform the job. Next, ask the following questions about each task: • 1. How often does the task take place? • 2. How is the task performed ? What methods, techniques, or tools are used? • 3. How much time does the task take? Does it consistently take this much time? • 4. Why is the task performed? • 5. Where is the task performed? • 6. How do we measure whether the task was accomplished or not? • 7. What happens if the task is done wrong? • 8. What aptitudes (potential to learn and accomplish a skill) are necessary? • 9. What general knowledge is necessary? • 10. What skills are necessary? • 11. How much physical exertion is needed (lifting, standing, sitting, etc.)• 12. What are the mental requirements of the task?

Once you’ve asked these questions, determine the essential functions of the job. What are the bottom-line qualifications neededto be successful at the job? Once you have determined the essential functions, determine the marginal functions, or

qualificationsthat would be nice to have but not strictly necessary for success. As you collect this information, seek the input of others withinThe department who are familiar with the job. You may want to talk with other supervisors and even the employee in theposition.

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ADA Definition of Essential Functions

"Essential Functions" as defined by the ADA: 1. The fundamental job duties of the employment position the individual with a disability holds or desires. The term "essentialfunctions" does not include marginal functions of the position.

2. A job function may be considered essential for any of severalreasons, including but not limited to the following:

• (i) The reason the position exists is to perform the function;(ii) Limited number of employees are available among whom the performance of that job function can be distributed; and/or(iii) The function may be highly specialized so that the person is hired for their expertise or ability to perform the particular function.

3. Evidence of whether a particular function is essential includes, but is not limited to :

• (i) The employer's judgment;(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;(iii) The amount of time spent on the job in performing the functions;(iv) The consequences of not requiring the incumbent to perform the functions;(v) The work experience of past incumbents in the job; and/or(vi) The current work experience of incumbents in similar jobs.

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ADA Definition of Essential Functions

"Marginal Functions" is defined as: Any task that is considered to be a peripheral, incidental, or minimum part of the job.

• Tasks that can be easily transferred to another employee without hurting the employer¹s business.

• The ADA focuses on job performance and not marginal duties in determining what is an essential job function.

• If the function of the job was removed, would the basic purpose of the position be destroyed. Or would it be an inconvenience?

• The term “responsible for” should not be used in listing the essential job functions.a. This is a vague term which does not give a real indication of what the duty entails.b. For example, “Responsible for preparation of quarterly reports” could mean that the job involves actual preparation of the report, supervision of that preparation, or coordination of the preparation with other departments.

• The catch all term “Other duties as assigned” is too broadly stated to meet current standards. A more acceptable term is “Other duties as assigned within the scope of responsibility and requirements of the job.”

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Discussion of Minimum Qualifications

• Clearly establishes the minimum ability required to do the job successfully.• Focuses on knowledge level and demonstrated ability “to learn” through the requirement of

a degree.• Indicates required certifications or licensures.• If incorrectly established, have the ability to discriminate against protected groups of

applicants.• Determine if degree is truly required and be prepared to defend. • Are you willing to accept equivalencies, if not valid reason • Common guideline on equivalencies:

AA=2 years experience non related AA=1 year experienceBA =4 years experience non related BA=2 years experienceUn-finished degree may be applied to minimum qualifications at a pro-rated level 3 years college work= 3years experience.Part time experience should be pro-rated.

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Knowledge, Skills, Abilities and Competencies

• The specific knowledge one needs to perform the job: Commonly known principles required for this field of work (e.g. generally accepted accounting standards for an Accounting Director, familiar with standard change management concepts for Human Resources professionals, knowledge of budgeting procedures for budget analyst.)

• Skills: Measurable learning's, proficiencies needed to perform a task. Usually enhanced through practice and repetition. Skills can be readily measured by a performance test where quantity and quality of performance are tested, usually within an established time limit. Examples of proficient manipulation of things are skill in typing or skill in operating a vehicle. (e.g. Can perform at an Intermediate level of Excel, Word and Access, perform statistical calculations for financial analysis, type at 50 wpm, advanced knowledge of research protocol. )

• Abilities: Demonstrated learning's may include personal characteristics, personality factors or capacities. The power to perform an observable activity. This means that abilities have been evidenced through activities or behaviors that are similar to those required on the job, e.g., ability to plan and organize work. Abilities are different from aptitudes. Aptitudes are only the potential for performing the activity. (e.g. able to translate strategy to action, communicate at all levels of organization, work effectively in ambiguous situations, proven track record of increasing total gifts pledged.

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Competencies• Competencies are identified behaviors, that directly and positively impact the success of employees and

their performance on the job. Competencies can provide direction and be objectively measured, enhanced, and improved through coaching and learning opportunities.

• Competencies can be both general and specific, such as business acumen, team building, communication etc. Some more specific competencies are leadership, supervisory skills.

• When defined properly, competencies (and their impact on desired results) can be measured, which also means that employees can be held accountable for them and evaluated against them.

• A few action examples of competencies:

-Explain how this role would demonstrate the ability to handle multiple priorities and deliver results. -With multiple demands placed on this role, how would one successfully ensure that the they were able to meet the needs of the department, as well coworkers, supervisors, and subordinates? -How this role would handle instances when someone comes to them with a problem. How would they successfully handle it? -What is the most complex or difficult information this role will have to analyze?-Think about how this role might use financial data to identify key business planning issues or concerns and how would that play out?-What are examples of the types of writing this role will have to draft. How will incumbent use written communication skills to get an important point across.-Think about difficult and/or complex problems this role will have to solve. What processes, resources will be utilized to successfully solve it.

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Regulatory Compliances• The Americans with Disabilities Act (ADA) The ADA require that applicants and employees are able

to perform the essential functions of the job, with or without reasonable accommodation.

• Fair Labor Standards Act (FLSA) Job descriptions are the primary documented source used to establish a jobs exempt status.

• Equal Pay Act (EPA) A job description is a vital piece of evidence supporting pay differences that exist between jobs, and as such, the position description must clearly identify the level of skill, effort, risk and responsibility required by the position, as well as the conditions under which it is performed.

• Title VII of the Civil Rights Act of 1964. This act makes it unlawful for an employer to discriminate against any individual with respect to hiring, compensation, or other terms, conditions, and privileges of employment based on race, color, religion, sex, sexual orientation, or national origin. The job description defines the requirements of the job and sets the standards for job performance. The job description is also critical as far as testing regulations are concerned. Any employment or pre-employment tests that are administered must be strictly in line with job requirements, which are outlined in the position description.

• Occupational Safety and Health Act (OSHA) position descriptions must have a section that describes the working conditions, particularly if they are adverse and dangerous. It is important that any unusual or adverse job conditions be clearly defined in the position description, so that employees know what to expect.

• Age Discrimination in Employment Act (ADEA) The job description can not discriminate on the basis of age unless there is a bona fide valid reason for a certain age applicant. The job requirements in terms of education, work history and experience, skills, physical characteristics all can not discriminate on the basis of age.

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Resources

• The Department of Labor (DOL) developed Career Onestop (http://www.careeronestop.org), an "online career development resource." Career One Stop features multiple tools such as O*Net and America's Career InfoNet, which may be helpful in formulating job descriptions.

• http://www.careeronestop.org/

• The Wage and Hour Department homepage at: www.wagehour.dol.gov

• Field Operations Handbook (FOH): The Field Operations Handbook (FOH) is an operations manual that provides Wage and Hour Division (WHD) investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance. http://www.dol.gov/whd/FOH/index.htm#.UIltyW_A-MM

• Department of Labor Opinion Letters: Comprehensive listing of DOL Opinion Letters• http://www.dol.gov/whd/opinion/flsa.htm#.UIluNW_A-MM

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