Job descriptions play an important role in minimizing employee-related liability. Along with employment policies and employment contracts, job descriptions define the employment relationship. Job descriptions often become critical evidence in employment disputes. In particular, job descriptions play an important role in disability discrimination cases and the determination of which employees are exempt from the requirements of wage and hour laws. Thus, employers need to take great care when preparing and updating job descriptions.
Roles of Job Descriptions
Disability Discrimination Cases
The disability discrimination laws prohibit discrimination against a qualified individual on the basis of disability. Qualified individuals with disabilities are those who can perform the essential functions of a job — with or without reasonable accommodation. The federal Americans with Disabilities Act (ADA) and state-created disability protection laws provide that it is illegal for an employer to discriminate against a qualified individual on the basis of disability in any of the following areas:
- Job application procedures.
- The hiring, advancement, or discharge of employees.
- Employee compensation.
- Job training.
- Other terms, conditions, and privileges of employment.
Disability discrimination cases examine the essential functions of the job to determine whether the complaining employee or former employee is protected as a qualified individual with a disability — under federal and state law — from the employer’s allegedly discriminatory actions. Written job descriptions are not required by the ADA or any other federal law. However, the ADA expressly recognizes that a written job description will be considered evidence of the essential functions of the job in ADA cases. Although determining the essential functions of a job involves many factors, the construction of a specific, detailed job description is the first step in any such definition. Additionally, employers have been successful in ADA cases where courts have held that an employee could not perform the essential functions of the job shown in the job description.
Conversely, employers have been unsuccessful in ADA cases because the job description failed to include the essential job duties of which, according to the employer, the employee could not perform. It is difficult for an employer to argue that a job duty is an essential function when that duty, which the employer claimed to be an essential one and the employee could not perform, is not included in the employer-prepared job description. These cases underscore the importance of carefully preparing job descriptions. Additionally, job descriptions must clearly state that the employee might be asked to perform duties not listed in the job description, but which are also considered to be essential to the employment position.
Exemption from Wage and Hour Laws
An employee’s job description also plays a role in determining whether an employee is exempt from the overtime compensation and minimum wage requirements of wage and hour laws. For example, an employee who is paid a salary like an exempt employee is not necessarily exempt unless the employee has exempt duties involving the level of responsibility required by the U.S. Department of Labor regulations.
Similar to disability discrimination cases, a court or administrative agency will likely find that the employee’s job description provides significant evidence of the employee’s job duties. In Department of Labor investigations and court cases involving exemption issues, employees may attempt to minimize the importance of their duties so as to qualify for the nonexempt status and be eligible for overtime compensation. Current and accurate job descriptions provide the employer with evidentiary protection against an employee’s claim in the form of an irrefutable written record that clearly establishes an employee’s duties and exempt status.
Almost any employment dispute where the employer has found the employee’s job performance to be inadequate will require a determination, similar to such determination in discrimination and exempt status claims, of the employee’s actual job duties. Employers are more likely to be successful in defending a claim where the employee had clear notice of the job expectations and failed to meet them. Job descriptions are the catalyst in providing employees with both the essential functions of a job and clear notice of employer expectations. Employers who are unable to prove that an employee was provided notice of the employer’s expectations are at a disadvantage in attempting to resolve a dispute.
Preparation of Job Descriptions
The preparation of job descriptions requires a thorough analysis of at least, but not limited to, the following:
- Essential tasks of the position and elements required for the position.
- Individual and professional qualifications needed from an employee to fulfill the essential tasks, for example:
- Physical ability.
- Language proficiency.
- Employer expectations in regard to the employment position, employee output, employee conduct, and any other applicable issues.
In creating an accurate and clear job description, an employer may opt to use any of the following methods:
- Obtain employee input. A current employee’s first hand knowledge of a job is a valuable tool in understanding the intricacies of a position. With the addition of an employee’s input, a job description may provide insight as to elements of the job that only a person actually performing the tasks would know. Although employees should not be permitted to create their own job descriptions, obtaining an employee’s input in regard to the position provides employers with protections against any future employee-based claim that the job description does not accurately reflect the duties.
- Maintain current job descriptions. Job descriptions must accurately and clearly reflect the expectations, qualifications, and other applicable information in relationship to the employment position to be effective. A job description loses value and the employer loses the job description protections against employee claims where the information becomes outdated or fails to provide information about an essential task. Employers must regularly review employment positions and ensure that the applicable job description accurately reflects the requirements of the position.
- Provide employees with regular updates. In an effort to keep employees aware of any job description changes or updates, employers should periodically distribute job descriptions to employees. For example, employees who do not review their job descriptions for a long time may allege that that the job has changed; thus, periodically distributing information avoids that problem. Employees should be required to identify any changes in their job duties since the descriptions were last reviewed. Additionally, employers may ask that employees conduct a review of the position as part of the performance-evaluation process.
- Include essential information. Employers need to maintain a balance between too much and too little information in job descriptions yet should include as many job duties and expectations as possible. Employers should be particularly careful to include any physical requirements for the job, such as lifting, standing, walking, working frequent overtime, working weekends, rotating shifts, and exposure to particular conditions such as weather and chemicals. The job description should also include unexpected job duties and should state that the employee may be asked to perform other duties as required by business needs. Employers should be careful not to include job duties that the employee will not perform. The more duties in a job description that the employee does not perform, the less likely the employer can persuade a judge or jury that the job description is a reasonable measure of the employee’s job responsibilities. Overall, job descriptions should reflect the reality of the employee’s job as accurately as possible. Business needs may also change on a daily basis, so job descriptions should specifically provide for this flexibility in a properly drafted description.
- Include special attendance requirements. Employers covered by the federal Family and Medical Leave Act (FMLA) must provide employees with 12 weeks of leave for serious health conditions per 12-month period. However, organizations may incur an unreasonable burden and be unable to function if certain positions are vacant for 12 weeks per year. If a particular job has unusual attendance requirements, the job description should include those requirements. However, an employee still might be entitled to be absent from work under the FMLA, notwithstanding such requirements.
- Include unusual job stress. Job-related stress can become an issue in disability discrimination litigation. Therefore, job stress should be addressed in the job description so that applicants and employees have advance notice of special circumstances they may be required to handle.
- Use descriptions in the application process. Employers will benefit most from job descriptions when used during the application process as a foundation for the position and guideline for the type of individual who would best fit the position. Applicants should be asked to review the job description for each job they are seeking and to certify, by signature, that they understand the job requirements and are able to perform that job. Such preventive measures may protect the employer from future assertions of an individual’s inability to perform an essential job function. For example, if an employee later asserts a disability that limits ability to perform the job and the disability was known to the employee at the time of application, the employer may be able to assert that the employee falsified the application. Note, however, that termination of an employee for this reason should be carefully reviewed. Intentional falsification or the reason why the employee did not disclose a disability that would interfere with the essential job functions will not always be provable. Some employees who have performed similar work for another employer may honestly believe they can perform the present job as well, only to discover there are some differences not readily discernible from the job description that render them a bad fit for the job. For example, the job may require operating a truck that is unlike the truck the employee used on a previous job. If the employee’s disability precludes using the gearshift, the employee will not be able to do this particular job, but was not dishonest on the initial application.
- Use measures of satisfactory performance. Performance evaluations should help both supervisors and employees measure how well the employee is performing their job. A carefully drafted job description that identifies the essential functions of the job and clearly describes the employer’s qualitative and quantitative expectations for each function should serve as the cornerstone of the performance evaluation process.
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