What Not To Do Wednesday – 3/22/17

Two recent stories have popped up in the last week that have to do with the wording of job descriptions and the impact of choice of words as well as the choice to use/not use the Oxford Comma.

In Maine, three truck drivers for Oakhurst Dairy sued their employer over the non-payment of overtime hours.  The case went to the 1st US Circuit Court of Appeals and hinged on a small detail – the Oxford Comma.  Maine law specifies specific tasks that are exempt from overtime pay:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

The legal question hinges on whether “packing for shipment or distribution of” means “packing for shipment or distribution of” or “packing for shipment” and “distribution of” are two separate tasks.  The drivers were not a part of the packing for shipment (or packing for shipment and distribution) but were part of the distribution of the product.

Currently, the Court of Appeals has sided with the drivers that the statement means packing for “shipment and distribution” and not inclusive of the distribution of the packed product.  This missing comma has a potential value in the millions of dollars.

In a separate case, noted on John Geaney’s Workcomp Blog, he details the case of a pharmaceutical sales representative who developed vision problems that prevented her from being able to drive.  When the sales representative lost her ability to drive due to vision issues, she requested that Pfizer, her employer, provide her with a driver to drive her to sales appointments.  Pfizer declined this option and offered her a change in position to one which did not require driving to sales appointments.  The sales representative turned down that offer and filed an ADA case.  The case revolves around whether driving is an essential demand of the position.  Pfizer contends that driving to and from sales appointments is an essential demand while the sales representative contends that the ability to travel to and from sales appointments is the essential demand.  Unfortunately, the employer never listed the ability to drive or the requirement of a driver’s license as essential demands of the position. The appeals court has remanded the trial so that it can be determined whether driving is an essential demand for the position.

While this What To Do Wednesday post isn’t the typical, don’t be like the guy in this picture or story, it still presents important information of What Not To Do.  It can no longer be assumed that because a task is an essential demand due to longstanding tradition or an assumption of common sense dictates it to be.  Also, employers need to be aware of the potential grammar issues in job descriptions that may pose a problem when it comes to either payment for work performed or whether assigned tasks are included in the tasks covered by a specific law.

 

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