A job description is a useful tool for employers from hiring through termination of employment. Often times, though, job descriptions are not given the time and attention they deserve. This is unfortunate because job descriptions are the cornerstone of employee discipline and evaluation, and are often cited in litigation.
A job description does more than set forth an employee’s basic job duties. In today’s world of increased litigation brought under the Fair Labor Standards Act (“FLSA”) and the Americans with Disabilities Act (“ADA”), the job description continues to be a pivotal document. A job description that adequately and accurately describes the duties actually performed by employees will help protect an employer much more than a vague over-scoping job description. When it comes to claims brought pursuant to the FLSA, ADA, or other statutes, it does not matter how carefully worded or creative the job description is—the question will always be “does this description adequately reflect the duties actually performed by the employee?” Here are eight items to consider when drafting or revising job descriptions.
- The listed job duties should reflect the actual duties performed by the employee. In wage and hour litigation, which is an increasing focus of the plaintiffs’ bar, job descriptions are not determinative of whether an employee is exempt or non-exempt. Rather, the fact finder looks at the duties actually performed by the employee. However, if a job description adequately reflects the duties actually performed by an employee, more credence is given to the employer’s paperwork and bolsters the employer’s credibility.
- Identify the essential functions of the job. Discrimination claims under the ADA have been at a steady rise. In all ADA litigation, the question is “can the employee perform the ‘essential functions of the job?’” It is not uncommon in litigation for the essential functions of the job to be at issue. Specifically identifying the essential functions of the job in a job description allows an employer to demonstrate that the employee was on notice of the essential functions, and allows it to have a resource any time it is engaging in the interactive process to determine whether a reasonable accommodation is available.
- Be precise. When describing the essential functions of a job and the job duties within a job description, it is important to be as precise as possible. This again ensures that expectations are clearly communicated to the employee, and that there are no surprises as to expectations. This includes ensuring that any physical requirements (e.g., lifting restrictions, standing requirements, etc.) adequately reflect the position’s physical requirements. Creating physical requirements that are in excess of the job’s actual requirements lead to disputes regarding proper accommodations, as well as arguments that the requirement has a discriminatory effect on individuals with disabilities. Administrative agencies have recently taken to scrutinizing physical requirements even more than past years during investigations to ensure that the requirements are narrowly tailored to the position in question.
- Audit positions and update regularly. Often times, as a company grows, some job positions’ duties and roles change (e.g., duties expand, a position is turned into two positions, etc.). Thus, it is important for employers to regularly audit job descriptions by comparing them to the duties actually performed by the employees. This ensures accuracy and helps demonstrate that the employer is aware of changes. If a job description no longer reflects the duties actually performed by an employee, they should be revised accordingly.
- The job description should be parallel to the standards on which the employee is being evaluated. Job descriptions should reflect the duties for which the employee is being evaluated. This gives the employee notice of the company’s expectations and helps mitigate any excuses by an employee that they “did not know” the expectations put upon them. This also assists with informal and formal discipline between evaluation periods.
- Use language to reflect duties that fall under an exempt status. The FLSA’s exemptions are a hot topic of litigation. Misclassification claims are rampant in federal courts. If, after performing an audit, it is determined that an employee is exempt under the FLSA, it is recommended to craft and use language directly from the FLSA’s regulations and statutory language to describe the duties actually performed by the employee. This helps tie the employee’s duties to the FLSA exemption relied upon.
- Have an attorney review. FLSA exemptions and identifying appropriate duties as “essential functions” is a tricky task – particularly with the rate the law has been changing. It is suggested to have job descriptions reviewed by legal counsel to ensure they are sufficient and that employees are properly classified. Periodic review and audit of job descriptions by legal counsel can also provide defenses against certain damage and liability claims brought in litigation.
- Obtain the employee’s signature. Having an employee acknowledge, in writing, that he or she has received and understands the contents of the job description – as well as the corresponding expectations – helps avoid later arguments that the employee did not know the expectations placed on him or her.
Taking the time to craft a well thought out and accurate job description will always pay dividends. It not only communicates performance expectations to the employee, but it assists the company in disciplining, evaluating, terminating, and/or accommodating employees. Job descriptions are also essential in helping set the ground work for defenses in litigation, including claims brought under the FLSA and the ADA. If it has been a while since you reviewed your job descriptions and determined whether they need to be revised, it is highly recommended that you do so in the near future.