While most employers have job descriptions on hand, many of them are outdated — and that could create hurdles in an employment law case.
That’s because the job descriptions don’t accurately reflect the essential job functions an employee performs, according to Rebecca Strauss, an attorney at Miller Johnson in Kalamazoo.
Strauss said there are three main areas she sees job descriptions come into play in investigations and litigation.
Exempt or not
“The first is when we are dealing with Fair Labor Standards Act issues,” Strauss said. “That is the act that governs whether an employee has to be paid overtime and minimum wage or whether they are exempt from those requirements.
“Often times, employers will identify on their job descriptions whether that position is exempt or not exempt,” Strauss said. “If we are going to have an employee be exempt, their primary job duties have to be exempt.”
Strauss said the first piece of information a Department of Labor investigator or the plaintiff’s attorney will ask for to determine if an employee is exempt is the job description.
Strauss provided computer professionals as an example, because they’re one category of white-collar professionals that can be exempt, depending on their job duties.
“To qualify for that exemption, their primary duty has to be systems analysis, design, development, documentation, creation, testing of computer systems or programs, those are the types of duties that should be specifically identified in the job description,” Strauss said. “It shouldn’t be generalized.”
Strauss noted one big mistake employers and HR departments make is using the wording “responsible for,” which she said does not designate whether that person is expected to perform the job duty or supervise others who perform the duty. The distinction matters.
The second area where job descriptions can become critical is when dealing with the Americans with Disabilities Act.
The question posed to an employer is whether or not an employee with a qualified disability can perform the essential functions of the job with or without reasonable accommodations.
“For the job description part of that it’s the term ‘essential function,’” Strauss said. “How do we know what the essential function is? That is often the real key to this reasonable accommodation analysis.
“One of the ways we figure out what the essential functions are is to look at the job description,” she said. “If the job description is outdated or inaccurate, that can be really harmful evidence. If it’s accurate and updated, that can be very helpful evidence.”
Strauss said the job description is also helpful when asking for a physician’s review of whether an employee can perform the essential functions of the job.
The third area where job descriptions can help in the legal arena is in disproving a discrimination complaint.
Strauss pointed to a recent case where an older, high-ranking employee was fired from his job and replaced by a younger employee. The older employee claimed employment discrimination as the cause, but the company contended that it was a result of the employee’s inability to perform necessary computer work for the job.
“The plaintiff came back with the job description and said that is not in my job description,” Strauss said.
As a result, the employer lost the motion to dismiss the case.
Strauss said that while job descriptions aren’t everything in these cases, they do help to prevent additional hurdles and challenges, making the cases easier.
Re-visit job descriptions
Strauss recommends employers update job descriptions every one to two years, noting that the functions of the job often change and employees often evolve in their positions, taking on more work and essential job functions with their experience, even if their title stays the same.
She also notes that frontline management should be included when updating job descriptions, because those are the people who know the essential day-to-day functions of the job.
Strauss said that it’s helpful if employers use the job descriptions in performance evaluations and reviews to help employees understand what’s required and expected of them in their position, particularly as positions evolve over someone’s years of service.
“It’s surprising in discipline situations how often it seems there is a misunderstanding about what the expectations of the position actually are, so going over the job description with the employee is an excellent communication tool,” she said.
Another tip she offers is to include the company mission statement on all job descriptions to capture overall companywide expectations.
“It’s also important for the employee to know the overarching goals and mission of the organization, so if something isn’t particularly mentioned in the job description, if the employee is doing something that conflicts with the overall mission and goals, the employee is on notice that that could be a problem,” Strauss said.