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Writing ADA and FEHA Compliant JobDescriptions in California: How toMeet the New RequirementsPresented by:Patricia S. EyresEyres Law Group, LLPTuesday, August 12, 20141:30 p.m. to 3:00 p.m. Eastern12:30 p.m. to 2:00 p.m. Central11:30 a.m. to 1:00 p.m. Mountain10:30 a.m. to 12:00 p.m. Pacificwww.blr.com or www.hrhero.comFor CD and other purchasing information, contact customer service at:800-274-6774 or E-mail: [email protected] 2014 BLR and HR Hero —Business & Legal Resources and HR Hero. All rights reserved. These materialsmay not be reproduced in part or in whole by any process without written permission.This program has also been approved for MCLE recertification credit.This program has been approved for 1.5 recertification credit hours toward PHR and SPHRrecertification through the Human Resource Certification Institute (HRCI). This program isalso a California-specific continuing education activity for PHR-CA and SPHR-CArecertification. For more information about certification or recertification, please visit theHRCI homepage at www.hrci.org. The use of this seal is not an endorsement by HRCI ofthe quality of the program. It means that this program has met HRCI's criteria to be preapproved for recertification credit.

Writing ADA and FEHA CompliantJob Descriptions in California: Howto Meet the New RequirementsPresented by:Patricia S. EyresEyres Law Group, LLPAugust 12, 2014Why Job Descriptions are Importantat Every Stage of entWorkplaceEnvironment 2014 Proactive Law PressDiscipline&Discharge2

Top Seven Benefits of Updated Job Descriptions1.2.3.4.5.6.7.Supports accurate compensation structure;Helps decision makers with recruiting;Helps manage performance expectations;Documents proper payroll classifications;Facilitates ADA/FEHA compliance;Helps defend against discrimination claims;Serves as a foundation for EEO reporting. 2014 Proactive Law Press3FEHA‐ADA Compliant Job Descriptions Establishes the necessary qualifications, skills, experience and essentialfunctions for recruiting and hiring; Establishes job‐related requirements for post‐conditional offer, pre‐placement medical examinations; Establishes essential job functions for evaluating return to work andreasonable accommodations; Serves as a roadmap for setting performance standards and evaluatingstay‐at‐work and reasonable accommodations; Documents that tasks are job‐related and consistent with businessnecessity for purposes of “imminent safety threat” defense. 2014 Proactive Law Press4

The Basic Components of a Job Description Job titleClassification (exempt vs. non exempt)Department or siteLevel of authority or supervision / reporting structureSummary statement (what, how & why tasks are assigned)Specific responsibilitiesSpecific tasks and functions performedSkills, education and experience requiredPhysical and/or cognitive capabilities required 2014 Proactive Law Press5Use Employment Terms Accurately Qualifications are skills and experience the incumbent must have toperform the position; A responsibility is something that the incumbent may perform ormust supervise; A task or duty is what the job incumbent performs– What work is done (action)– How the work is done (procedures, materials, tools, equipment)– Why the work is done (objective) A function is a group of duties that constitute one of the distinctand major activities involved in the work performed. 2014 Proactive Law Press6

Responsibilities and Task OutcomesWhat is the required output level ?What are the expected results?What is the relationship between each task?Is there a task sequence or a task hierarchy?Are tasks performed at specified times or intervals?What are the physical, mental and cognitiverequirements to accomplish the job? Is specific training necessary? 2014 Proactive Law Press7What to Include in the Responsibilities Section Regular daily functionsRecurring duties performed at regular intervalsEquipment or technical resources used regularlyQuantity and quality standardsResponsibilities for following instructionsAccountability for employer resources or resultsResponsibilities for management or supervision of othersEnvironmental factorsTravel or other special requirementsPhysical, cognitive or mental demands 2014 Proactive Law Press8

The JD as a Roadmap for Pre‐Employment Inquiries Address the specific tasks and functions of the job; Address how the job applicant can performthe essential functions of that job, particularly physical,cognitive or emotional tasks; Address unique environmental factors at the worksite,particularly climate, sound or exposures, Address anticipated reasonable accommodations, whereappropriate, for disabilities or special needs; and Follow consistent procedures for pre‐employment drug tests,exams, background checks and security clearances. 2014 Proactive Law Press9Qualifications and Competencies For Successful Recruiting Competency: a skill, knowledge or ability required forsuccessful performance; State the level of ability required, with examples; Categorize as “required” or “preferred” rather than“desirable;” Avoid using subjective terms, such as “high-level;” Avoid phrases such as “desire to learn” and“commitment to growth.” 2014 Proactive Law Press10

Drafting Strategies for Effective Job Descriptions Use specific task statements, not generalizations. Use objective, rather than subjective terms. Remove outdated duties due to technology changesor workforce adjustments. Use accurate adjectives (“fast‐paced”). Use action verbs (“assigns, writes, sorts”). Include only reasonable expectations. Avoid subjective terms involving attitude,cooperation. 2014 Proactive Law Press11Avoid Using Imprecise or Generalized LanguageSubjective High stress/pressure Must concentrate High energy level Flexibility/AdaptabilityObjective Performs a variety of duties, oftenchanging from one task to another Performs with frequent interruptions ordistractions Complete a workload of xxx cases withinestablished time deadlines Adjust priorities quickly ascircumstances dictate. Ability to interactappropriately with colleagues fordifferent purposes in different contexts. 2014 Proactive Law Press12

Essential Information to Make an Individualized Decisionfor a Timely, Good Faith Return‐to‐Work Process Each interactive process is an individualized evaluation and decision,taking into account three things:– The individual’s functional capacity, limitations or restrictions;– The essential job functions of the job she has or she seeks;– The business needs of the organization in the window of time youare making the decision. An effective interactive process requires:– Concrete, reasonably current statements of essential functions;– Specific, unambiguous medical restrictions that address the essentialjob functions. 2014 Proactive Law Press13Determination of What is Essential RequiresAn Individualized Analysis The determination of the essential functionsof a position must be done on a case‐by‐casebasis so that it reflects the job as actuallyperformed, not simply the components of ageneric position description. Every aspect of an interactive process is anindividualized evaluation. 2014 Proactive Law Press14

Essential Job Functions FEHA Regulations Definitions “Essential functions” means the fundamental job duties ofthe employment position the applicant or employee witha disability holds or desires. May be essential if:– Job exists to perform the function– Limited number of employees available to distributethe function– Function is highly specialized , so the incumbent ishired for specific expertise to perform that function “Marginal functions” are those that if not performed,would not eliminate the need for the job or that could bereadily performed by another employee or that could beperformed in an alternate way 2014 Proactive Law Press15Determine Essential Job Functions Case by CaseDetermination of the essential functions of a position must be doneon a case‐by‐case basis so that it reflects the job as actuallyperformed, not simply the components of a generic positiondescription.Evidence of whether a particular function is essential includes, but isnot limited to, the following:–––––––The employer’s judgments as to which functions are essential.Written job descriptions prepared before recruiting.The amount of time spent on the job performing the function.Consequences of not requiring incumbents to perform function.The terms of a collective bargaining agreement.The work experiences of past incumbents in the job.The current work experience of incumbents in similar jobs. 2014 Proactive Law Press16

Cast a Wide Net for Knowledgeable Job Incumbents The law gives deference to the employer’s determination of essential jobfunctions, BUT:– Jurors are often skeptical of significant physical requirements whenincumbents aren’t held to the same standards, and– Appellate courts are often reluctant to overturn a jury verdict that isbased, in whole or in part, on their view of witness and employercredibility Make sure you are using realistic data, to avoid claims of “pretext” orretaliation When Detailed JD/JA isn’t available, seek input from:– Supervisor(s) and second level manager– Other incumbents in the job, currently or in the recent past– Related positions job descriptions for other facilities– The employee in question – in the interactive dialogue 2014 Proactive Law Press17Proving a Function is Really EssentialAnd Not a Pretext to DiscriminateEmployer’s judgment as to which functions are essentialAccurate, current written job descriptionsAmount of time spent on the job performing the functionThe legitimate business consequences of not requiringthe incumbent to perform the function Descriptions in a collective bargaining agreement Work experience of past incumbents on the job Current work experience of incumbents in similar jobs References to the importance of performance of the jobfunction in prior performance reviews 2014 Proactive Law Press18

Reality Check:Is the Function Really Essential or a Pretext to Discriminate? Leuzinger v. Lake County: 1,679,001.00– 369,000 past and future economic damages– 1,250,001 emotional distress damages A corrections officer had an industrial injury (wrist) andreturned to work after two surgeries with restrictions onthe amount of writing she could do in a work day. There were no job modifications and she performed alltasks on a regular basis. She then took medical leave for non‐occupational cancersurgery. When she returned, she was told she couldn’tperform her job because of the wrist restrictions 2014 Proactive Law Press19Leuzinger vs. Lake CountyIn the Words of the Court“Perhaps the single weightiest piece of evidence that the jurycould have relied upon was that Leuzinger in fact performedas a Senior Juvenile Correctional officer from July 8, 2003(when she was released back to work following the secondwrist surgery) through March 31, 2004 (when she left formedical leave due to breast cancer) without difficulties . ajury might reasonably find this evidence seriously undermines[the county’s] assertion that Leuzinger could not perform theduties of the position after her second surgery ” 2014 Proactive Law Press20

A Case in PointMcMillan v. State of New York (March 4, 2013) McMillan worked as a case manager for New York City’s Human ResourcesAdministration (HRA), conducting home visits, processing social assessments,recertifying clients’ Medicaid eligibility, referring clients to other social serviceagencies. He was schizophrenic and his medication caused him to feel drowsy andsluggish in the morning. HRA had a “flex policy” for arrival time, based on long elevator waits and businessfactors. Also, McMillan’s supervisor tolerated his late arrivals for years. When shestarted to discipline him for tardiness, he formally requested flex time as areasonable accommodation, which was denied because there would be nosupervisor to work with him after hours, if he extended his day. He sued and a judge sided with the HRA’s argument that punctuality was anessential element of the job. The Appeals Court disagreed and reinstated the lawsuit, finding that the City’sflex policy and historical tolerance of McMillan’s tardiness demonstrated itwasn’t an essential job function. 2014 Proactive Law Press21Job Task Analysis is a Roadmap forthe Interactive lMore data neededPhysical tasks andduration of each taskMental activitiesDuration of stressSocial interactionCommunicationrequiredLicenses requiredMedical clearancesrequiredDuties performed atspecific times of day? 2014 Proactive Law Press22

What Tasks Require Major Life Activities InvolvingPhysical, Sensory, Cognitive or Neurological Functions?Physical Actions Bending Climbing Reaching Crawling Crouching Squatting Lifting Balancing Standing Sitting Hand or foot motionsSensory or Cognitive Vision – close or distance Depth Perception Color vision Hearing/Listening Speaking/shouting Taste or smell Fingering Feeling Thinking Calculating Memory/Recall 2014 Proactive Law Press23Examples of Physical Demands Bend: flexion of the upper trunk forward while standing andknees extended or knees flexed when sitting Lift: exertion of physical strength to move objects (specifyweight) from one level to another Carry: hold or rest weighted objects (specify weight) directlyon hands, arms, shoulders or back while moving from onelocation to another Climb: ascend/descend with gradual or continuous progress,using both hands and feet Push: exertion of force on or against an object (weight/size) tomove it from one location to another. Feel: perceiving attributes of objects, such as size, shape,temperature or texture by touching with skin 2014 Proactive Law Press24

Examples of Sensory Demands Hearing: perceiving the nature of sounds by ear Taste/Smell: distinguishing with a degree of accuracy,differences or similarities in intensity or quality of flavors orodors by using tongue or nose Talking: expressing or exchanging information by means of thespoken word, or to convey detailed spoken instructionsaccurately, loudly or quickly Vision: clarity of vision at 20 inches or less Depth perception: three‐dimensional vision. Ability to judgedistances and spatial relationships to see objects where andas they actually are 2014 Proactive Law Press25Action Verbs to Address Physical Demands ts esCompiles/ collectsInspectsPreparesCommunicatesDetermines/ Identifies / recognizes /perceives 2014 Proactive Law Press26

Sample Administrative Job Function AnalysisACTIONOBJECTLOCATIONGOALESSENTIALY/N% OFSHIFTRetrievesandreviewsemail andvoice-mailat the mainoffice deskin order to direct messagesand inquiries to appropriatepartyY10%Answersincomingtelephone callsat the mainoffice deskin order to take messagesand direct calls to theappropriate partyY10%GreetsVisitors, guests,delivery driversat the mainoffice deskin order to direct them to theappropriate partyY10%Takescustomer ordersvia telephoneat the mainoffice deskin order to satisfy customerneedsY10%Placespurchase ordersto suppliersvia telephoneat the mainoffice deskin order to obtain neededmaterials and suppliesY10%Contactssuppliersvia telephoneat the mainoffice deskin order to determinedelivery statusY10% 2014 Proactive Law Press27What are the Cognitive Tasks? AnalyzingCountingConcentrating or focusing with frequent interruptionsSummarizingInterpreting written data (text or numeric)Synthesizing information from multiple sourcesWriting summaries or abstractsInterpreting written or verbal instructionsSummarizing or responding verballyRecognizing social or professional behavioral cues 2014 Proactive Law Press28

What are Analytical Skills? Classifying: systematically arrange into groupsor categories according to established criteria Analyzing: define the problem or objective,identify relevant factors, identify patterns andrelationships, formulate logical and objectiveconclusions, recognize alternative 2014 Proactive Law Press29Potential Reasonable Accommodationsfor Neurological, Cognitive or Emotional DisordersFatigue Provide goal oriented workload Self paced workload Telecommuting part of the weekAttendance Flexible start or end times Modified weekly scheduleConcentration Reduce distractions Increase natural lighting Work from home/telecommuting Divide up large assignmentsControl over Emotions Flexible breaks Stress management techniques Assistive animals (FEHA regs.)Memory Provide job coach Provide a mentor Allow additional training time Written checklists or memory aidsOrganizational skills Daily weekly, monthly task lists Divide larger assignments into smallertasks or goals 2014 Proactive Law Press30

Worksite and Workstation Issues What is the physical layout of the work‐site?What equipment is used in the work setting?What functions and tasks are performed, and where?What conditions are required for task completion?Is the job site accessible (parking, entrances. exits, doors)?Are tasks completed in multiple, alternate, or remote sites?How is the workstation logistically arranged within the site?How do workers obtain and discard equipment and materials?How is the work organized at the worksite?How is the specific work station organized?Is the worksite/workstation stationary or in motion? 2014 Proactive Law Press31Reducing Distractions As Reasonable Accommodationsfor Cognitive or Mental DisabilitiesAuditory Distractions Purchase a noise canceling headset Hang sound absorption panels Provide a white noise machine Relocate employee’s office space away from audible distractions Redesign employee’s office space to minimize audible distractionsVisual Distractions Install space enclosures or cubicle walls Reduce clutter in the employee's work environment Redesign employee’s office space to minimize visual distractions Relocate employee’s office space away from visual distractions 2014 Proactive Law Press32

Where are the Tasks to Be Performed?Elevators or escalatorsStairs or laddersCurbs or guttersConfined spacesWalking or standing on uneven surfacesTraversing inclines: uphill, downhill or mixedPublic transportation – ground (bus, train)Public transportation – airTravel across multiple time zonesPhysical workspaces under normal operatingconditions or foreseeable travel Ingress and egress in foreseeable emergencies 2014 Proactive Law Press33What Essential Functions Involve CommunicationRequirements: Speaking, Gesturing or Interacting? Large Group meetingsSmall group meetingsLarge group presentationsGroup training or teachingOn‐the‐Job training that requires demonstrationProfessional networking, business developmentSocial interactions with colleagues or clientsTelecommutingTeleconferencing 2014 Proactive Law Press34

Reasonable Accommodations for Professional and InterpersonalCommunications with Certain Cognitive and Mental Disabilities Provide a job coach to help understand different social cuesIdentify areas of improvement in a fair and consistent mannerMake attendance at social activities optionalUse training videos to demonstrate appropriate workplace behaviorEncourage co‐workers to minimize personal conversationTake unnecessary personal conversations away from work areasProvide awareness training for leaders and co‐workersEncourage all employees to model appropriate social skillsAssign a mentor to assist with social interactions in group settingsAdjust the supervisory method to better fit the employee’s needsAllow the employee to work from homeAdjust method of communication to best suit the employee’s needs 2014 Proactive Law Press35What are the Environmental Conditions? Driving car, truck, forklift or equipmentWorking around moving equipmentOperating hazardous equipmentExposure to dust, gas or fumesExcessive noise, vibrations, sensory conditionsWorking in sunshine or inclement weatherWet/dry conditionsHot/Cold – Inside/outsideWorking with florescent lightingWorking in dark areasPhysical contact with chemicals or substancesExposure to electric shock, vibration or toxic chemicals 2014 Proactive Law Press36

Is Stress or Pressure a Part of PerformingEssential Job Functions? Extensive or high volume of paperworkFast‐paced daily work outputLong hours/overtimeTedious detail work (written or verbal)Tight deadlinesLarge caseloadWorking with frequent interruptionsWorking with direct supervisionWorking with minimal supervisionDealing with difficult situations involving the public or staffExtreme environmental conditions (noise, smell, heat or cold)Working in areas subject to foreseeable emergencies 2014 Proactive Law Press37What is the Level of Supervision? Close Supervision: incumbent is assigned duties according tospecified procedures and receives detailed instructions. Work ischecked frequently. General Supervision: incumbent normally receives little instructionon day to day work and receives general instructions on newassignments Direction: Incumbent establishes methods and procedures forattaining specific goals and objectives and receives guidance withbroad goals. On the final results are viewed. General Direction: incumbent exercises wide latitude in determiningobjectives and approaches to critical assignments. 2014 Proactive Law Press38

Is Self‐Management Required? Fluctuating workload Prioritizing: set priorities which accurately reflect therelative importance of job responsibilities Follow through: work independently and followthrough on assignments with minimal direction Ambiguity: take action when answers to a problemare not readily apparent 2014 Proactive Law Press39Concrete Approaches to Reasonably AccommodatingOrganization and Task Prioritization Divide large assignments into several small tasksEstablish interim deadlines with regular progress follow upUse flow‐chart to indicate steps in a taskProvide verbal or pictorial cues on written instructions or checklistsUse weekly chart to identify daily work activitiesSet a timer with alarm after assigning ample time to complete a taskProvide written instructions or checklists for assignmentsSupply handheld organizer and train on how to use effectivelyConsider color coding to prioritize tasks, events & importance levelAllow additional training time for new tasksSpeech recognition software to address detail oriented data entry issuesConsider professional organizer services for entire work groupsUse a job coach or mentor to teach/reinforce organization skillsAssign new project only when previous project is complete, when possible 2014 Proactive Law Press40

JDs Help Support Direct and Imminent Threat Defense1. Job Must be Safety Sensitive: Defense is available only if, after engaging inan interactive process, there is no reasonable accommodation that wouldallow the employee to perform essential functions in a manner that wouldnot endanger his/her health or safety because the job imposes animminent and substantial degree of risk.2. Risk Must be Present and Not Future: No defense to assert that anindividual with a disability has a condition or a disease with a future risk, solong as the condition or disease does not presently interfere with his or herability to perform the job in a manner that will not endanger the individualwith a disability or others. Factors:– Duration of the risk;– Nature and severity of the potential harm– Likelihood and imminence that potential harm will occur; and– Consideration of relevant evidence about past work history.3. Risk Must be Supported by Medical Judgment: “The analysis of thesefactors should be based on a reasonable medical judgment that relies onthe most current medical knowledge and/or on the best available objectiveevidence.” 2014 Proactive Law Press41Obtaining Medical Information to Support Direct andImminent Threat Defense Job Related means tailored to assess the employee’sability to carry out the essential functions of the jobor to determine whether the employee poses adanger to himself or to others due to the disability Business Necessity regarding medical orpsychological examinations means that the need forthe disability inquiry or medical examination is vitalto the business 2014 Proactive Law Press42

Have you Covered all the Bases? Job identification – title, divisionJob structure within organizational settingQualifications and skills requiredResponsibilitiesJob tasks and time devoted to eachJob requirements – physical, cognitive, mentalEnvironmental conditionsUnique aspects of the positionCatch all statement for anticipated changes 2014 Proactive Law Press43Checklist for Drafting and Implementing1.2.3.4.5.6.7.8.Review accuracy on a regular basis;Review whether tasks are still being performed as originallyintended;Evaluate staffing needs after workforce adjustment;Get input from job incumbents and managers;Put the JD to use and evaluate effectiveness;Make any changes required by real‐world monitoring; andAnticipate future changes for prompt updating.Use resources that are available to your organization. 2014 Proactive Law Press44

A Word About this MaterialThis handout accompanies a presentation for employers, RiskManagers and HR professionals. While the information is accurate andup to date, it is not intended to, and does not constitute, legal adviceon a specific matter.For specific legal advice on a specific case, whether in any currentmatter or merely anticipated, contact a qualified attorney.You can reach the presenter with questions or requests forinformation:[email protected] 2014 Proactive Law PressDisclaimers*This webinar is designed to provide accurate andauthoritative information about the subject mattercovered. It is sold with the understanding that thepublisher is not engaged in rendering legal, accounting, orother professional services.*This webinar provides general information only and doesnot constitute legal advice. No attorney-client relationshiphas been created. If legal advice or other expertassistance is required, the services of a competentprofessional should be sought. We recommend that youconsult with qualified local counsel familiar with yourspecific situation before taking any action.45

Patricia S. EyresAttorney Patricia S. Eyres, themanaging partner of Eyres LawGroup, LLP, focuses on helpingemployers manage disabilitydiscrimination issues for both workers' comp andnon-occupational disabilities. As president ofLitigation Management & Training Services andCEO/Publisher of Proactive Law Press, LLC, Ms.Eyres trains managers and supervisors on how torecognize risks, prevent lawsuits, and maintaindefensible documentation.

JOB DESCRIPTIONJOB TITLE:WAREHOUSE PERSONNEL6:00 a.m. to 3:30 p.m. / Monday through Friday;2:00 p.m. to 10:30 p.m. / Monday through Friday;5:00 a.m. to 1:30 p.m. / Monday through FridayUSUAL TIME OF WORK SHIFT:8 - 10 hours per day, 40 hours per weekBREAKS:Variable, depending on schedule,One 30 minute break; One 30 minute lunchOVERTIME:0 to 5 hours per week, as necessarySALARY:UndisclosedMACHINES USED:Electric motorized standing forklift, motorized man-lift(maximum height capacity: 144"), and Electric PalletJackTOOLS USED:General clerical items, knives, black tape, shrink wrapASSISTIVE DEVICES:NoneSAFETY CLOTHING/EQUIPMENT:Uniform consisting of shirt and pantsSuggested: hard toed shoesDESCRIPTION OF WORK PLACE/WORKSTATION:The work takes place within the company's distribution/transportation/warehouse facility; distributor forpaper, food and janitorial supplies for the retail and wholesale markets. All activities take place within thewarehouse area, which is modern, well lit, ventilated, level concrete floored, and well equipped withwarehouse storage utensils, machinery and equipment, including a warehouse office for administrativeduties. Other work areas include the loading/unloading area, stocking area and adjacent localities.Produced by Regain, Inc. – 04/02/08(800)743-8448

Warehouse PersonnelPage 2QUALIFICATIONS FOR JOB: On-The-Job TrainingDESCRIPTION OF JOB TASKS/PURPOSE:The warehouse worker selects orders and merchandise based on an inventory "pick list", which includescustomer's orders. The "pick list" is distributed by the Warehouse Manager. Customer orders range from 1case of containers to 2,000 cases. The Warehouse Personnel operates powered pallet jacks, forklifts and manlifts, in order to move the merchandise. He/She shrink-wraps the order to secure the load. The ordermaximum size is 8' x 48" x 40". The Warehouse Personnel marks the order, places the pallet location on"pick list", and documents the processed orders. The Warehouse Personnel returns to the warehouse office inorder to repeat the process by obtaining another "pick list."The warehouse worker retrieves loaded pallets, double checks each item in order to ensure process accuracyand general quality control. He/She completes a "load completed" form. Other duties involve cleaning up,picking up of wrapping, sweeping warehouse areas using a push broom or a dust mop, empting trash, pickingup debris, stacking and sorting damaged pallets. Receiving involves processing inbound loads, verifyingmanifests, recording information in various documents, and performing general quality control for incomingamounts. The Warehouse Personnel assigns drivers to truck unloading docks for unloading activities. TheWarehouse Personnel puts overstock and other merchandise away and restocks or replenishes fill pick-slotsto capacity. He/She selects orders by obtaining a "

The JD as a Roadmap for Pre‐Employment Inquiries Address the specific tasks and functionsof the job; Address how the job applicant can perform the essential functions of that job, particularly physical, cognitive or emotional tasks