Employers—You Really Should Have Job Descriptions

By: Melanie Dunajeski

At our recent seminar “Employer Self Audit-Identifying Potential Problems Before They Arise,” one of the questions we asked our participants was “do you have a written job description for each position at your company?”  The responses were mixed—some did, some had job descriptions for some but not all of their positions, and some had none at all.  Do we recommend that employers have written job descriptions? Yes, we do, for reasons that extend from hiring, to employee classification, pay practices, leave management, performance management, and protection in claims of discrimination.

At the hiring phase, a written job description forces the manager or person requisitioning the new employee to define the need and how to meet it. It provides the vehicle for defining what are the essential functions of the job so that a qualified applicant with a disability can be properly considered and not unlawfully excluded. It provides the framework for applicant screening and interviewing so that you can find the best candidates while minimizing potential discrimination pitfalls.  It will help you avoid claims that the requirements of the job shifted during the search process to favor a certain person or class of people or to exclude any person or class of people.  As an example, if you don’t have a written job description and fail to note in your posting that the job has some significant physical requirement (such as “must be able to climb a 6 foot ladder” or “must be able to stand and walk continuously”), when you later exclude a person based on a disability, there may be an inference that you adopted this new requirement to avoid hiring a person with a disability.

Job descriptions also help employers see more clearly how that employee should be classified for payment of wages or salary—exempt or non-exempt.  The job description can be used for side-by-side comparison with the requirements for each of the DOL exemptions.  If the job does not meet the requirements of one or more of the recognized exemptions, that employee must be paid at least minimum wage and overtime for any hours over 40 hours in a 7 day pay period. The cost of misclassification errors (unpaid overtime, liquidated damages, attorneys fees) far outweighs the time and effort necessary to create accurate job descriptions.

Job Descriptions also help an employer identify where they may have Equal Pay Act issues—do  male and female employees have the same or similar job duties, but one is paid more than the other?  The job description is an excellent tool for identifying potential Equal Pay Act liability and correcting the problem before a claim arises.

Job descriptions can also serve as the framework for performance management and evaluation.  A performance evaluation that follows a job description is a credible and effective means of assessment. If a Performance Improvement Plan becomes necessary, the job description is one of the bedrock resources that reinforce what is required of an employee.

Eventually, a job description may help you make those hard decisions with respect to employees, since a properly written job description will include the “essential functions” of the job.  Under the Americans with Disabilities Act,  the job description will help you determine whether you need to make an accommodation for this employee, since the act defines a “qualified person with a disability” as a person who can perform the essential functions of their job, with or without a reasonable accommodation.  The nature and reasonableness of any potential accommodation may come down to how the essential functions of the job are  defined by the employer—and the best source is a job description. If the accommodation requested is some type of leave or intermittent leave, the job description may show that regular and reliable attendance is an essential function of the job—or that in-person attendance (as opposed to telecommuting) is required.

Job descriptions will also help you avoid claims of other types discrimination and defend against them if they are made.  Claims by employees that they have the same responsibilities as other employees but are treated differently based on their protected class (such as race, national origin, sex, religion) can be defused by having written job descriptions that show that the two employees do not have the same job duties and responsibilities.

If you already have job descriptions, that’s great. Remember, however, that as positions within your company change or are created, combined or eliminated, you may need to update them.  Further, the employee needs to know what his/her job description is in order to be compliant.  Make sure that the employee gets a copy and acknowledges it.  It is a best practice to do a full review of your job descriptions every two years to ensure that the work that the employee is doing is still what is described, to review exempt/non-exempt status, and to make sure that you have not created parallel job descriptions that could open you up to discrimination or Equal Pay Act Claims.

Do you need help getting started on creating or updating job descriptions or making sure that your job descriptions provide you with the protections that you need? Contact us.