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The Importance of Job Descriptions

Job descriptions are one of the most important tools in an employers’ toolbox, yet so many employers do not take job descriptions as seriously as they should.  Whenever I first meet with a new or potential client, one of my first questions is whether the employer has job descriptions for each job title in the workplace.  So many times, the employer will say no.  For those that tell me they have written job descriptions, many have not been updated or reviewed recently or the job descriptions are incomplete.

Job descriptions come into play in many aspects of the employment relationship.  For example, before an employment relationship even begins, job descriptions are used to create the advertisement for the open position.  Having an accurate and up to date job description allows the employer to provide potential applicants with detailed information regarding the duties of the open position as well as the qualifications required from applicants.  In fact, I generally recommend that employers provide applicants with a copy of the job description at the time of the interview so that the applicant can properly assess whether he or she can actually perform the duties of the position.   Job descriptions are also at the forefront of dealing with disability accommodation requests.  If you do not have a job description or the job description you have is inaccurate or incomplete, then medical providers will be forced to use only the information provided to them by the employee in providing an opinion, instead of having guidance from the employer regarding the essential functions of the job.  Additionally, job descriptions provide a roadmap to the employee regarding the employee’s duties and responsibilities in the workplace.  Failing to have up to date job descriptions can create issues with disciplining an employee for failing to perform the duties of the job.  Job descriptions also play an integral part in employee evaluations.  In fact, job descriptions are the guiding force in creating performance evaluations that will accurately assess how an employee is performing.

So where should employers begin?  First, an employer must identify each job title within the workplace.  Each individual job title should have its own written job description.  Second, the employer must evaluate the duties for each job title to assess the essential functions of the position as well as the secondary functions of the position.  Does the position require a lot of lifting (and how much)?  Does the position require bending and kneeling or climbing?  Would the employee need to travel for the position?  Are there any educational, licenses or certification requirements?    In many cases, speaking to supervisors and individual employees regarding what they do during their workday is helpful in the creation of an accurate and up to date job description.  Generally, it is also recommended that the job description contain a catchall that allows management to assign other duties not specifically listed and to indicate on the job description that management retains the right to modify the job description at any time.  Once the job description is complete, employers must have their employees sign off on their job descriptions, specifically, that they have read the job description and understand their duties.  A copy of the signed job description should be maintained in the employee’s personnel file.

Finally, employers should review job descriptions yearly to determine whether there have been any changes to the position, make any updates to the job descriptions that are necessary and have employees sign the new job description.

What You Need to Know About OCR Complaints & Investigations – Part 1

By: Lauren E. Tedesco, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

The Office for Civil Rights (“OCR”) is the federal agency charged with enforcing anti-discrimination laws in programs or activities that receive federal financial aid from the United States Department of Education (“USDOE”). The OCR investigates alleged discrimination on the basis of race, color, and national origin pursuant to Title IV of the Civil Rights Act of 1964; sex discrimination pursuant to Title IX of the Education Amendments of 1972; discrimination on the basis of disability pursuant to Section 504 of the Rehabilitation Act of 1973; and age discrimination pursuant to the Age Discrimination Act of 1975. As recipients of federal financial assistance from the USDOE, all public elementary and secondary schools are within the OCR’s purview for enforcement of these federal anti-discrimination laws.

Any individual, including parents, can file a complaint with the OCR when they believe that an educational institution has discriminated against them on the basis of race, color, national origin, sex, disability or age, within 180 calendar days from when the alleged discrimination took place. Capehart Scatchard has handled numerous OCR complaints on behalf of school districts on issues ranging from alleged inaccessibility of playgrounds for students with physical impairments to alleged non-compliance of procedures for developing accommodation plans for students with certain medical conditions. Upon receipt of such complaint, the OCR will determine whether it has jurisdiction and whether the allegations were timely filed. If these initial requirements are met, the OCR will act as a neutral fact-finder and will work diligently to promptly resolve complaints by way of an investigation and/or assisted resolution.

If the OCR conducts an investigation, the educational institution is notified by way of an opening letter and data request. The data request will seek information and/or documentation that the OCR believes will be beneficial in conducting its investigation. For elementary and secondary education, the opening letter and data request will be sent to the Superintendent of Schools. It is imperative that upon receipt, the Superintendent or designee send a copy of the opening letter and data request to counsel, as the timeline for the school district’s response is rather tight, most often, less than a month. Thereafter, it is important to begin gathering the information and/or documentation requested. It is also important to speak with the staff members involved in the allegations. The response to the data request may also include any other relevant information and/or a position statement by the school district.

Within the OCR’s opening letter and data request will also be a document entitled, “OCR Complaint Processing Procedures,” and may include, when appropriate, an Early Complaint Resolution (“ECR”) process which is similar to mediation. The ECR process affords the parties the opportunity to mutually resolve the complaint prior to the investigation being completed. If offered, ECR should also be discussed with counsel prior to rendering the school district’s response to the opening letter and data request.

Stay tuned for Part 2 of this series in which we will discuss best practices to responding to a data request and further discuss investigation procedures, including interviews and letters of finding.

The Anachronistic “Sole Cause” Defense of Intoxication and Unlawful Use of Controlled Dangerous Substances in New Jersey Workers’ Compensation

At least once a week this practitioner gets a call from an employer or adjuster asking whether New Jersey has a defense to accidents where the employee is found to be heavily intoxicated or under the influence of illegal substances.   The response is always the same: yes, there is technically a defense, but unfortunately the way the statute is written, it is almost impossible for an employer to prevail.

New Jersey is one of a few states in which the employer must prove that intoxication or the use of controlled dangerous substances is the sole cause of the injury.  It is not enough for an employer to prove that intoxication is the main cause or a substantial cause:  it must be the sole proximate cause.  If any other factor is involved, the employer loses.  In most states employers win if they can prove intoxication was a substantial or contributing cause.   How weak is the New Jersey defense? There is really only one published case in the last 50 years in which an employer has won on the intoxication defense in New Jersey!

If the employee can show that some other factor besides intoxication contributed in some way to the injury – like bad weather, a slippery floor, exhaustion from working too hard – the employer’s defense fails.  Frankly, it is almost impossible to exclude all other causes.  That point was driven home by the  New Jersey Supreme Court in Tlumac v. High Bridge Stone, 187 N.J. 567 (2006).  At the end of the opinion the Supreme Court expressed its own frustration with the regrettable language contained in the New Jersey statute.

In Tlumac the employee’s wife admitted that her husband usually drank 10 beers every weekend.  On the day of the accident, petitioner arose at 2:15 a.m. to begin his drive.  He drove 30 miles south on Route 31 with 77,000 pounds of Belgian block in his truck and then blacked out.  His tractor-trailer traveled 180 feet off the road, jumped the curb and traveled 66 feet on the shoulder, hit the guardrail and rubbed against it for 247 feet, struck a parked truck and then struck a utility pole.  The officer on the scene noticed an odor of alcohol, and petitioner admitted to drinking the night before.  An expert for the employer extrapolated that petitioner’s blood alcohol level was between .10 and .18 at the time of the accident, well above the legal limit.

The employer denied the claim based on intoxication being the sole cause of the accident.  The Judge of Compensation, Appellate Division and the Supreme Court all ruled against the employer and in favor of the petitioner on compensability because the employer could not prove the sole cause defense.  Other factors may have played a role in the accident, such as petitioner’s exhaustion from working too many hours in the days prior to the accident. He had worked over 200 hours in the prior two week period of time.  He also testified to exhaustion from repairing the roof of his home the night before the accident.   Justice Wallace, who wrote the decision, conceded that the New Jersey statute “may no longer comport with current policies at deterring the dangers of drinking and driving.  Nevertheless, any change in that interpretation must come from the Legislature.”

Twelve years after the Tlumac decision, nothing has been done by the Legislature to address the situation that Justice Coleman addressed, namely deterring the dangers of drinking and driving.  As hard as it is for employers to win on an intoxication defense, it is even harder for employers to win when illegal drugs are found in the employee’s system because it is scientifically impossible for an employer to pinpoint exactly when the illegal substances were used.  Many drugs, like marijuana, remain in the system for days, if not weeks.

One must wonder what the social policy was that the Legislature was trying to promote many decades ago when the sole cause language was written into law.  A cynic might conclude that the purpose was to sanction the practice of employees coming to work somewhat inebriated.  The truth is that intoxicated employees not only risk injury to themselves but may also imperil the lives of others.  Yet as of 2018 heavily intoxicated employees who are injured at work or those under the influence of illegal substances remain eligible for workers’ compensation, even if the use of alcohol or drugs was the major cause of the accident.  The reason is that the major cause is not the same as the sole cause.

A change in the law to “substantial cause” instead of “sole cause” would benefit all New Jersey residents and would send the correct message that employees must keep alcohol and illegal substances out of the workplace.   The present statute was written at a time when the two martini lunch was perhaps considered socially appropriate.  But those days should be long gone.

The post The Anachronistic “Sole Cause” Defense of Intoxication and Unlawful Use of Controlled Dangerous Substances in New Jersey Workers’ Compensation appeared first on NJ Workers' Comp Blog.

Commissioner of Education Rejects Settlement Agreement to Terminate Send-Receive Agreement

It should be easy to end a send-receive relationship between two boards of education when they both agree to sever ties – right? Not so fast, says the New Jersey Commissioner of Education (“Commissioner”) in a decision issued on February 9, 2018 in Mine Hill Board of Education v. Dover Board of Education. The Commissioner rejected a settlement agreement reached between two boards of education to terminate a send-receive relationship for failing to follow the rules regarding termination.

The Mine Hill Board of Education (“Mine Hill”) wanted to modify its send-receive relationship with the Dover Board of Education (“Board”) and sought a limited severance by bringing back its seventh and eighth grade students to Mine Hill over two years. Mine Hill proposed to keep its high school students at Dover under the proposed limited severance. Mine Hill initiated a formal petition as a contested matter because Dover did not originally agree with Mine Hill. The matter was then forwarded to the New Jersey Office of Administrative Law to be adjudicated by an Administrative Law Judge (“ALJ”).

After the matter was before the ALJ, Mine Hill and Dover reached an agreement about the send-receive relationship and entered into a settlement agreement memorializing same. The ALJ approved the settlement agreement and issued an initial decision.

Initial decisions must be reviewed by the Commissioner. In this case, upon review, the Commissioner rejected the ALJ’s initial decision and the parties’ settlement because the parties did not adhere to the criteria set forth in N.J.S.A. 18A:38-13 and N.J.A.C. 6A:3-6.1 regarding the application for severance of a send-receive relationship. Specifically, Mine Hill was required to submit a feasibility study to the Commissioner. Moreover, even after the parties agreed to the proposed severance, they were required to announce at their respective public meetings that the record before the Commissioner would remain open for twenty days to allow for interested persons or entities to submit comments to the Commissioner.

This case highlights the importance of following statutory requirements even when two boards of education resolved their differences regarding a send-receive relationship.

Appellate Division Rules Against Charter Schools In Funding Issue

Four charter schools located in Jersey City challenged the level of funding they received from the local board of education under the School Funding Reform Act of 2008 (“SFRA”) as inadequate for their students to receive a thorough and efficient education in violation of the New Jersey Constitution. In an unpublished decision issued on September 14, 2017, the New Jersey Appellate Division denied the charter schools’ challenge and upheld the current funding mechanism in Learning Community Charter School v. Jersey City Board of Education.

Charter schools are public schools that operate under a charter granted by the Commissioner of Education (“Commissioner”). They were enacted by the Charter School Program Act of 1995 (“CSPA”). Charter schools are independent of a local board of education. Through N.J.S.A. 18A:36A-12 of the SFRA, charter schools receive 90% of certain funding categories from the local board of education. Charter schools also receive state and federal aid. However, the funding for charter schools is not equivalent to that of traditional public school districts.

The charter schools in this case initiated a challenge before an Administrative Law Judge (“ALJ”) and the Commissioner arguing that the difference in funding for charter schools and traditional public school districts is unconstitutional. At the heart of their claims, the charter schools argued that they are entitled to “adjustment aid,” which local school districts receive. Adjustment aid protects districts from a sharp reduction in state aid resulting from the new funding formula set forth in the SFRA. It allows local districts to spend above adequacy to maintain current levels of spending without significant tax levy increases or reductions in programs and services.

The ALJ and Commissioner both ruled against the charter schools. The charter schools then filed this appeal with the Appellate Division.

The Appellate Division upheld the decisions of the ALJ and Commissioner, finding that the statutory scheme created by the SFRA and CSPA is clear and unambiguous. It reasoned that nothing in the SFRA and CSPA requires charter schools to receive adjustment aid. Further, adjustment aid was not part of the formula to fund the costs of a thorough and efficient education. The Legislature could have added this type of aid to the funding formula for charter schools but chose not to.

The Appellate Division also reasoned that the CSPA sets forth strict statutory standards for charter schools to provide at least the same level of education as traditional public schools – otherwise they could lose their charters. Finally, the Appellate Division noted that students dissatisfied with the education they are receiving at the charter schools could easily enroll in the traditional public school. For all of those reasons, the Appellate Division denied the charter schools’ challenge in this case.

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