Every year, Pennsylvania’s appellate courts seem to issue a handful of decisions addressing the enforceability of non-compete agreements. However, there are relatively few court decisions addressing non-solicitation agreements. A non-solicitation agreement is the less restrictive cousin of the non-compete. Under a non-solicitation agreement, a former employee is permitted to work anywhere, including competitors of his or her former employer. A non-solicitation agreement merely prohibits a former employee from soliciting (or perhaps even contacting) the former employer’s customers, prospective customers and/or employees. In Metalico Pittsburgh, Inc. v. Newman, the Superior Court of Pennsylvania recently addressed some fundamental points regarding enforcement of these less restrictive agreements.

In Metalico, two executives of a scrap metal broker left their employer (“Metalico”) to join a competitor, Allegheny Raw Materials, Inc. (“ARM”). Upon joining Metalico, they had both signed employment agreements which included non-solicitation provisions that prevented them from soliciting any of Metalico’s suppliers for up to two years after their employment ended. Their employment agreements were each for three year terms and, once these terms expired, the agreements were not renewed. Both executives continued to work for Metalico for a period of time as “at will” employees; i.e. their salaries and bonuses were no longer contractually guaranteed.

After leaving Metalico, both executives began soliciting Metalico’s suppliers for their new employer. Metalico sued to enforce the non-solicitation provisions in the expired employment agreements. The trial court ruled for the executives and refused to enforce the non-solicitation restrictions, holding, once the employment agreements expired, they “were replaced with at-will relationships that did not include non-solicitation provisions.”

On appeal, the Superior Court of Pennsylvania reversed the trial court and enforced the non-solicitation restrictions. The Court began with the basic premise that both executives received adequate consideration for their non-solicitation covenant when they signed [their agreements] “as part of their initial employment relationship.” Citing several earlier decisions, the Court then observed that “it is possible for a non-solicitation covenant to survive the end of a term of an employment contract, when the employee stays on as an at-will employee” if the written agreement provides for this. Looking to the terms of each executive’s employment agreement, the Court then noted that the non-solicitation provision was clearly intended to be in effect during three relevant time periods: (a) during the three-year term of the employment agreement; (b) during any period of continued employment after the employment agreement expired; and (c) up to two years after the executives left Metalico’s employment.

Since the non-solicitation restrictions were supported by adequate consideration (i.e. initial employment) and were never mutually disavowed by the parties, the Superior Court held that the restrictions remained enforceable – notwithstanding the expiration of the agreements in which they appeared.

It is not uncommon for employees to continue working for a company after their written employment agreements expire. The Metalico case serves as a good lesson as to how to draft restrictive covenants that will survive the expiration of the agreement in which they appear. Another approach taken by many employers is to have employees sign two separate agreements – an employment agreement with a fixed term, and a separate restrictive covenant agreement that remains in effect for the duration of employment and for a fixed period afterward. Regardless of which approach is taken, the Metalico case demonstrates that careful drafting is the key to ensure enforceability.

Employers with 100 or more employees (and federal contractors with 50 or more employees) must submit an EEO-1 Report annually, detailing the race, gender, and ethnicity of its workforce. In September of 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a revised EEO-1 Form, which would have required employers to submit extensive data related to employee compensation. For each EEO category, the revised EEO-1 Form would have required employers to identify the number of employees in each of twelve pay bands. Starting with 2017 data, the filing deadline was also pushed back to March 31.

Over the past several months there were calls from the business community for the new Director of the Office of Management and Budget (“OMB”) to initiate a review of the revised EEO-1 Form pursuant to OMB’s authority under the Paperwork Reduction Act – which requires every federal agency to obtain approval from OMB to collect information from the general public in order to ensure that the benefit of the information collection outweighs its burden. On August 29, 2017, the OMB answered that call and issued an immediate stay of the compensation data collection portion of the revised EEO-1 Form. The basis of the stay? Since issuing the revised form, EEOC released data file specifications for employers to use to submit the data. OMB stated that these specification were not included in the public comment process and the specifications change the burden estimate. OMB also found that the revised EEO-1 Form contrary to the standards of the Paperwork Reduction Act and questioned the utility of collecting the information.

So what does this mean for employers submitting EEO-1 Reports? Most importantly, the compensation aspects of the revised EEO-1 Form do not need to be reported. However, the revised filing deadline remains intact. So the 2017 EEO-1 Reports are not due until March 31, 2018. Just as before the revised EEO-1 Form was issued, the reports must contain data related to employee race, gender, and ethnicity. Finally, for our federal contractor subscribers, the stay does not impact the filing of your VETS 4212 form, which must be filed by September 30, 2017.

On August 31, 2017, Judge Amos L. Mazzant III of the U.S. District Court for the Eastern District of Texas issued an order holding that the 2016 Fair Labor Standards Act white-collar overtime exemption regulations were invalid.  In November 2016, Judge Mazzant had issued a nationwide preliminary injunction blocking the new FLSA white-collar overtime exemption regulations from taking effect on December 1, 2016.  With the order issued on August 31, 2017, Judge Mazzant formally struck down the challenged regulations, granted summary judgment for the plaintiffs, and closed the case.

As you may recall, the 2016 regulations more than doubled the minimum weekly salary requirement for most white-collar overtime exemptions from $455 to $913.  The regulations contained a number of additional provisions, the vast majority of which were not viewed favorably by employers.

In his decision, Judge Mazzant clarified that the DOL has the legal authority to create a minimum salary requirement for the white-collar overtime exemptions, but in this case exceeded that authority by more than doubling the existing minimum salary requirement.  In a separate decision also issued on August 31, 2017, Judge Mazzant denied a motion to intervene in the case filed by the Texas AFL-CIO, finding that the motion was untimely and that the DOL adequately represented whatever interests the Texas union had.

On the same day that the Court issued its order granting summary judgment and closing the case, the DOL asked the appeals court that was set to hear the appeal of the November 2016 preliminary injunction decision to hold that appeal in abeyance “pending further discussions by the parties in an attempt to narrow the dispute and potentially eliminate the need for this appeal.”  It is unclear what the next steps for the parties in this matter will be, but the events of August 31, 2017 decrease significantly the likelihood of the 2016 regulations ever taking effect.

Where are we now and where to we go from here?

A future decision by an appeals court overturning Judge Mazzant’s decision appears unlikely, primarily because the Trump Administration’s DOL likely will not pursue such an appeal and Judge Mazzant denied the Texas AFL-CIO’s motion to intervene in the case.  Thus, the requirements for the white-collar overtime exemptions remain (and should remain for the near future) what they were before the 2016 regulations, with a minimum weekly salary requirement of $455.

The Trump DOL has indicated that it intends to issue new regulations that would revisit, and likely increase, the white-collar exemptions’ minimum salary requirement.  Unless and until those regulations are issued and take effect, $455 remains the minimum weekly salary requirement, and the existing regulations, which date back to 2004, remain in effect.

For years, employers have struggled with properly completing the requirements of the I-9 Form.  Every employee hired after November 6, 1986 must have an I-9 Form on file with the employer.  The Form is proof that the employer has examined documents sufficient to establish the employee’s right to work in the United States.  While the purpose of the I-9 is relatively straightforward, some large employers have faced fines amounting to hundreds of thousands of dollars for errors these Forms.

With the electronic Form’s release on July 17, 2017, many of the violations that created liability should be a thing of the past.  The new form provides drop down boxes which offer options in filling out sections of the form.  The options will help in eliminating some of the common errors employers have made in the past like properly completing sections on; citizenship, immigration status, document title and state of residence.  The form’s electronic version also provides instructions for completing each section when the user clicks on the question mark in that section.

In spite of these revisions which are designed to assist in preparation of the form, some employers have chosen to print the form and fill it out on paper.  As a result, many easily avoidable mistakes remain an issue.  We advise clients to fill out the form on a computer if at all possible, thus taking advantage of the individualized instructions and drop down boxes in each section of the new I-9 Form.  We note as well that the “N” at the end of the release date in the bottom left hand corner of the form means that it is the only version currently authorized for use.  Finally, we continue to see employees who use E-Verify failing to fill out I-9s in the mistaken belief that participation in the E-Verify program releases them from the requirement to have an I-9 for each employee.  It does not.  You must prepare a new I-9 for every employee regardless of whether you participate in E-Verifying.

The new electronic I-9 Form is available at USCIS website. Use it online and make your lives easier.

Most employers take proactive steps to prevent and eliminate workplace harassment. Until recently, courts recognized and rewarded the proactive approach.  Businesses in Pennsylvania, New Jersey and Delaware could avoid liability for hostile work environment claims if they rooted out the problem before it became “severe and pervasive.”

Courts had long held that a single slur, even if highly offensive, was not pervasive and therefore could not trigger employer liability.  The United States District Court for the Middle District of Pennsylvania upheld that standard in Castleberry v. STI Group, a 2015 case involving African American workers who were subjected to a racial slur and threatened with termination in a single incident.  The District Court dismissed the claim.

On appeal, the Third Circuit overturned the District’s ruling.  In doing so, the Court noted that the “plaintiffs alleged that their supervisor used a racially charged slur in front of them and their non-African-American co-workers…Within the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred).”  Under these facts, the Third Circuit held that a single, isolated slur constitutes severe conduct that could create a hostile work environment.

Castleberry is now the law of the land for all Pennsylvania employers (and those in New Jersey and Delaware) who are subject to federal anti-discrimination laws. And it is certainly bad news for employers.  The ruling makes it much easier for a hostile work environment plaintiff to survive summary judgment, leading to increased defense costs and greater potential for a costly verdict.

In light of the Third Circuit’s holding, employers would be wise to take inventory of its anti-discrimination and anti-harassment policies to ensure that they are up to date and prohibit all occurrences of discriminatory harassment. Supervisors and managers should also be made aware that even a single, isolated racial slur can now lead to liability.

We will continue to monitor Third Circuit cases that develop under Castleberry and any updates will be reported here on our blog.

This post was contributed by Logan Hetherington, a McNees Summer Associate. Mr. Hetherington is a rising third year law student at Penn State Dickinson Law School and is expected to earn his J.D. in May of 2018.

Well, if you are an organization that has employees, you do! Although they may be a bit unappealing and often overlooked, worksite notices are required under both federal and state law. In fact, many municipalities and cities also have ordinances that require certain notices to be posted at the workplace. Willful failure to meet posting requirements may lead to citations and other penalties.

The postings are not only important because the government says so, they also serve an integral role in educating employees. Many of the required notices inform employees of their rights, and duties, under particular statutes. This can aid employers in several ways. For example, if employers have up-to-date notices posted where employees can frequently see them, the employers shield themselves from future issues when dealing with employee grievances because the employee cannot claim ignorance. Moreover, management will be more aware of potential illegal conduct which could put the employer in the hot seat and (hopefully) make better decisions with respect to employee relations.

The majority of required worksite notices can be acquired from the United States Department of Labor or state departments of labor. The notices and posters may be obtained free of charge from these agencies, or, employers can purchase them from private retailers. However, employers should be aware that many of these postings have specific requirements. The posters and notices must be placed where employees can openly see them and many must be posted in Spanish or other language versions if employees don’t speak English. Additionally, not all employers have to post the same notices. Government contractors, for instance, are obligated to post specific notices regarding prevailing wages and other employee rights. Likewise, smaller employers may not be subject to some posting requirements.

Even though most worksite postings are easily accessible, many employers may be surprised to learn that their posters and notices are actually out-of-date. The content of the notices change as the law does. Consequently, governments routinely revise their posters and notices but typically don’t inform employers of these revisions. Employers should routinely check their postings and update them as necessary. Our Labor and Employment Group maintains a list of required federal and Pennsylvania worksite notices. We also aid employers in navigating the complex overlap between federal, state, and local posting requirements and can help employers ensure that they are in compliance with postings and the statutes which trigger them.

The Pennsylvania Personnel Files Act (also known as the Inspection of Employment Records Law), grants employees in Pennsylvania, or their designated agents, the right to inspect certain portions of their personnel records. The Act requires employers, upon an employee’s request, to permit the employee to inspect the portions of his or her personnel file used to determine qualifications for employment, promotion, additional compensation, termination or disciplinary action.  Employers must make the records available during regular business hours and may require employees to submit a written request form.

Until recently, the right to inspect records even extended to former employees within 30 days following their date of discharge pursuant to a rule adopted by the Pennsylvania Department of Labor and Industry.  However, in Thomas Jefferson University Hospitals, Inc. v. Pa. Department of Labor & Industry, the Pennsylvania Supreme Court held that former employees do not have the right to inspect their personnel records.

Allowing discharged employees and their attorneys to access personnel files prior to litigation afforded them great insight into potential legal claims. This type of access to information was often used in developing a strategy for negotiations, future litigation or deciding which claims to assert.  The discharged employees and their attorneys could weigh how the employer’s articulated reason for termination lined up with (or in some cases did not line up with) what the employer documented in the personnel file.

Now, because of the Supreme Court’s decision, employers can safely refuse to grant discharged employees access to their personnel files.  The background behind the Supreme Court’s decision in Thomas Jefferson University Hospitals is explained below.

At the outset, a former employee filed a request, through her attorney, to view her personnel file just one week after she was discharged. The employer denied this request on the basis that the former employee was no longer employed.  The former employee filed a complaint with the Department of Labor and Industry claiming that the employer wrongfully denied her request for access to her personnel file. Ultimately, the Department granted the former employee’s request to inspect her personnel file.  The employer appealed to the Commonwealth Court.  On January 6, 2016, the Pennsylvania Commonwealth Court issued its decision in Thomas Jefferson University Hospitals, Inc. v. Pa. Department of Labor & Industry, finding a recently discharged employee, was still an “employee” under the Personnel Files Act.

While the definition of employee under the Act (any person currently employed, laid off with reemployment rights or on a leave of absence) appears straightforward, the Commonwealth Court found that the definition did not prohibit a recently terminated individual from obtaining his or her personnel file.  The Court did note that the request must be made contemporaneously with termination or within a reasonable time immediately following termination.  This rationale was based on the 1996 Commonwealth Court decision in Beitman v. Department of Labor & Industry.  In that case, an employee requested access to her personnel file 2 years after her employment was terminated.  The majority of the Commonwealth Court found that the former employee was not permitted to access her file under the Personnel Files Act 2 years after her termination from employment.  However, the Court left open the possibility that discharged employees could access their personnel file when they requested access within a reasonable time following their termination from employment.

Following the Beitman case, the Pennsylvania Department of Labor & Industry adopted a policy that provided former employees access to their personnel files so long as they made the request within a reasonable time after termination from employment, which they determined to be approximately 30 days.  Because of this policy, employers were often required to provide former employees with access to their personnel files even after their termination from employment.

This was the background leading up to the Supreme Court’s decision.   The Supreme Court’s full opinion can be found here.

In contrast to the Commonwealth Court, the Supreme Court took a plain language approach in interpreting the definition of “employee.”  In doing so, the Supreme Court concluded that former employees who were not laid off with re-employment rights and who were not on a leave of absence, have no right to access their personnel file under the Act, regardless of how soon after termination the employee made the request.  The Supreme Court also specifically overruled the Beitman decision stating that the Commonwealth Court’s holding was dicta and not controlling.

While the Supreme Court’s decision is favorable to employers, this a good time to remember the importance of including proper documentation in personnel files. A well-documented personnel file that persuasively demonstrates that an employee was discharged for legitimate, nondiscriminatory reasons will go a long way in supporting an employer’s defenses to a former employee’s legal claims.  After all, while a former employee may not be able to review his or her record pursuant to the Act, he or she may be able to obtain a copy pursuant to a subpoena or discovery request in litigation.

Prior to June 20, 2017, a powerful tool was available to employers and workers’ compensation carriers to cap exposure on long term workers’ compensation claims.  That tool, provided by the Act 44 amendments in 1996, was called an impairment rating evaluation (IRE) and generally worked like this: once a claimant had received 104 weeks of total disability benefits and had reached maximum medical improvement, the employer could request an IRE.  A doctor was assigned to perform the evaluation and was required by statute to consult the most recent version of the American Medical Association’s guidelines.  If, under those guidelines, the IRE doctor determined that the claimant’s injury caused less than 50% whole body impairment, the employee’s workers’ compensation benefits could be modified from total to partial disability status, with a corresponding time limitation on future indemnity benefits.  The process was helpful in resolving serious injury cases, where the employee was too disabled to work but had reached a medical plateau.

Pennsylvania workers’ compensation law places no cap on the length of time in which a claimant can receive total disability benefits.  Partial disability benefits, however, are capped at 500 weeks.  Thus, via the IRE process, it was possible to prevent a claimant from receiving total disability benefits indefinitely by modifying their status to a maximum of 500 weeks of partial disability benefits.

On June 20, 2017, the Pennsylvania Supreme Court changed all of this with its decision in Protz v. Workers’ Compensation Appeal Board.  In that case, the Court held that the IRE process was unconstitutional because the legislature is not permitted to delegate its authority to issue impairment rating guidelines to a non-legislative body (i.e. the American Medical Association).  Since the IRE provisions are legislated to be applied under the most current version of the American Medical Association guidelines (which are frequently updated), the Supreme Court struck down the IRE provisions of Pennsylvania’s Workers’ Compensation Act as an unconstitutional delegation of legislative authority.

The immediate impact of Protz on future claims is clear – unless the Pennsylvania Supreme Court reconsiders and reverses its decision, the IRE process is no longer available to employers and workers’ compensation insurance carriers.  This means that it will be considerably more difficult to cap exposure on workers’ compensation claims where an employee has received 104 weeks of temporary total disability benefits and has reached maximum medical improvement.  Indeed, a reversion to the use of vocational experts to establish job availability is likely, where light duty work at the time-of-injury employer is not available.  For claims where the IRE process was used prior to the court’s decision in Protz, outcomes are less clear.

Employers who are litigating a modification of benefits based on an IRE would do well to withdraw the modification petition.  Now that the IRE process has been deemed unconstitutional by the Pennsylvania Supreme Court, an IRE can no longer serve as a valid basis for future modification of benefits.  Without a valid basis to litigate a modification petition, employers who continue to rely on an IRE in litigation are exposed to penalties and unreasonable contest fees.

Likewise, employers who are actively seeking to obtain an IRE should refrain from doing so.  Again, the evaluation cannot provide a valid basis for modification of benefits, and the Bureau of Workers’ Compensation has also indicated that it will no longer assign IRE physicians in the wake of Protz.

So what about claims where benefits have been modified or a claimant’s status has been changed as the result of a past IRE where the claimant failed to appeal?  Employers likely have no affirmative obligation to restore the pre-IRE, pre-modification status quo, but claimants may file petitions seeking to do just that.  While Pennsylvania law typically prevents the retroactive application of judicial decisions to matters that have been fully and finally determined, it is unclear how workers’ compensation judges, the Appeal Board, and Pennsylvania Courts will approach the issue. In cases where an employer obtained a modification of benefits because of an IRE and the claimant did not appeal, the doctrine of res judicata may serve to prevent re-litigation of the case.

We will continue to monitor the status and impact of Protz; additional developments will be reported here on our blog.

On April 27, 2017, the Senate confirmed R. Alexander Acosta as the Secretary of Labor.  More than four months after President Trump took office, the U.S. Department of Labor finally had a new leader.

In the ten weeks since Secretary Acosta took office, the DOL has been very busy, with a number of important actions that directly affect employers.

  • Withdrawal of Joint Employer and Independent Contractor Interpretations. On June 7, the DOL announced that it was withdrawing its 2016 and 2015 Administrator Interpretations on joint employment and independent contractors.  With this action, the Trump Administration DOL confirmed that it would walk back from the more expansive interpretations of joint employer status and employment status in independent contractor situations adopted by the Obama DOL.  This action does not mean that employers no longer face risk from possible joint employer or independent contractor situations.  Instead, the DOL has indicated that it will return to the more traditional interpretations of these concepts used by the DOL under prior Administrations.
  • Revising the Persuader Rule. On June 12, the DOL issued a notice of proposed rulemaking to rescind and revise the enjoined so-called Persuader Rule.  The Obama-era Persuader Rule would have greatly expanded the reporting and disclosure requirements imposed on employers and consultants (including lawyers) with respect to labor relations advice and services under the Labor-Management Reporting and Disclosure Act’s “persuader activity” regulations.  The Obama-era Persuader Rule was permanently enjoined in November 2016, and it appears that the Trump DOL will be taking action to formally rescind the blocked rule and perhaps issue new regulations that could further modify existing reporting and disclosure requirements.
  • Return of Opinion Letters. On June 27, the DOL announced that its Wage and Hour Division will reinstate the practice of issuing opinion letters to provide guidance to employers and employees on the laws it enforces.  The Obama DOL had ceased issuing opinion letters in 2010, and the return of opinion letters will be welcomed by employers as a useful tool when interpreting the requirements of the Fair Labor Standards Act and other federal wage and hour laws.
  • Compliance Date Pushed Back for Electronically Submitting Injury and Illness Reports to OSHA. Also on June 27, the DOL’s OSHA announced that it was delaying the compliance date for electronic reporting of injury and illness data set forth in its May 2016 regulations from July 1, 2017 until December 1, 2017.  Under the Obama DOL, OSHA intended to use the electronic submission of this data to post injury and illness data on its website from all workplaces with 20 or more employees and for those in certain high-risk industries, making the information publicly available for unions, plaintiffs’ attorneys, and others.  In its June 27 press release, OSHA indicated that it intends to revisit and further consider the controversial rule.
  • Clarification of Position on the FLSA Overtime Exemption Regulations. On June 30, the DOL filed its Reply Brief with the Fifth Circuit Court of Appeals in the pending appeal of the preliminary injunction blocking the 2016 salary-related changes to the FLSA white-collar overtime exemption regulations from taking effect.  As we have discussed at length in this blog, the Obama-era regulations more than doubled the minimum weekly salary requirement for most white-collar overtime exemptions from $455 to $913.   In November 2016, a federal district court enjoined the regulations from taking effect on December 1, 2016, and the DOL appealed this decision.

In its Reply Brief, which was the first opportunity for the Trump DOL to state its formal position on the controversial regulations, the DOL argued that the injunction blocking the regulations should be reversed, because it was based on the legal conclusion (which the DOL still believes is erroneous) that the DOL lacks the authority to impose any minimum salary requirement as part of the exemptions’ tests.  However, the DOL asked the Fifth Circuit not to address the validity of the specific minimum weekly salary level of $913 set by the 2016 regulations, because the DOL intends to revisit the salary level through the issuance of new regulations in the future.

The DOL’s position, as set forth in its Reply Brief, raises additional questions and seemingly muddies the waters even further.  Specifically, if the Fifth Circuit ultimately agrees with the DOL’s position as stated its Reply Brief, what would be the fate of the challenged 2016 regulations and their $913 weekly salary requirement?  What would be the minimum salary required for the FLSA white-collar overtime exemptions before the DOL could issue new final regulations on the minimum salary level?  On June 27, the DOL sent a Request for Information related to the overtime rule to the Office of Management and Budget for its review, indicating that it intends to initiate the rulemaking process on this issue.  However, it will take many months, if not a year or more, for the DOL to complete the rulemaking process and issue a final rule to supersede the challenged 2016 overtime regulations.

Unfortunately, the DOL’s Reply Brief seemingly raised more questions than it answered, which is not good for employers who simply wish to know the legal requirements they must meet.  We now will await oral arguments on the appeal and a decision sometime in the future.

With a Secretary of Labor now in place, we expect the DOL to continue its recent pace of activity.  Stay tuned.

In September of 2015, two delivery drivers filed a class action lawsuit in the United States District Court for the Middle District of Pennsylvania. The employees alleged that their former employer violated the Fair Labor Standards Act by failing to pay them overtime between 2012 and 2015. The class subsequently ballooned to 474 members (and an additional 588 former and current delivery drivers remain eligible to opt into the class). The members asserted that over that three year period, the employer denied them overtime for five to ten hours per workweek, totaling over $10 million in allegedly unpaid wages.

The employer initially argued that the employees were exempt from overtime requirements. It claimed that in addition to making deliveries, as “Route Sales Professionals,” the drivers could make additional sales, fill orders, and upsell when making deliveries. Therefore, according to the employer, the drivers fell within the FLSA’s “outside sales person” exemption. The drivers maintained that sales were not part of their job duties; they were simply delivery drivers who did not fit within the outside sales exemption.

After two years of discovery, in April of this year, the parties notified the court that they had reached a settlement agreement. They asked the court to approve agreement, as is required with both FLSA claims and class actions lawsuits.

The amount: $2.5 million.

This month, the court approved the FLSA settlement. It also preliminarily granted approval of the class action settlement, subject only to a fairness hearing scheduled for September.

For our blog subscribers that have delivery drivers who also engage in incidental sales, now is the time to reevaluate how you classify those employees. In addition, this case serves as an important reminder for all employers that FLSA classifications turn on the actual job duties of the position, not the job title. In fact, a written job description will not even be controlling, unless it is an accurate reflection of the employee’s job duties.