Job descriptions are not required by law. But they are among the most important documents an employer should have to avoid lawsuits.
Up-to-date and accurate job descriptions can protect against charges of discrimination and explain the rationale for classifying employees as exempt or non-exempt. In fact, you should write your job descriptions with overtime exemptions in mind. That way, you’ll be able to defend your decision to exempt certain employees when the Department of Labor arrives for an audit.
Job descriptions are also critical support for nearly every employment action, including hiring, compensation, promotion, discipline and termination.
Consider a July 2016 ruling by the 10th Circuit Court of Appeals in Kilcrease v. Domenico Transportation Co. A truck driver and cancer survivor sued under the ADA because the trucking company refused to hire him.
The job required applicants to (1) hold a Class A commercial driver’s license, (2) have three years of recent and verifiable mountain driving (the company is located in Colorado), (3) have no moving violations within a three-year period and (4) be able to drive year-round in the Colorado mountains.
The applicant lacked three years of recent driving experience, required by the company’s auto-insurance underwriter.
The job description was crucial to the court’s decision. The plaintiff, it determined, was unable to perform the essential functions of the job because he had only half the required mountain-driving experience.
One of the things that an employee must prove in a disability discrimination lawsuit is that he was qualified to perform the essential functions of the job, with or without reasonable accommodation.
The ADA offers seven guidelines for determining whether a particular function is essential:
- The employer’s judgment as to which functions are essential
- Written job descriptions prepared before advertising or interviewing applicants for the job
- The amount of time spent on the job performing the function
- The consequences of not requiring the incumbent to perform the function
- The terms of a collective bargaining agreement
- The work experience of past incumbents in the job
- The current work experience of incumbents in similar jobs
So as you can see, the employer’s opinion about whether a function is essential is only one part of the equation.
So what should you include in a job description?
- Employee status (exempt/non-exempt)
- Who the employee directly reports to
- Job summary
- Education and experience
- Certificates, licenses, and registrations that are required
- Physical requirements
- Work environment
Add the phrase “other duties as assigned” to provide some flexibility.
Update your job descriptions regularly. Make sure all essential functions are listed. If new duties have been added to the job, include them in the job description. By the same token, eliminate functions that are no longer essential or even necessary. You don’t want raise doubts about the rest of the job description. Experts advise a review of the job description each time you hire a new employee for the position.
Don’t ignore what might seem obvious, such as the ability to read and write English, communication skills or the ability to follow directions or work with a team. Don’t leave out physical requirements, either. For example, requirements for a desk job include the ability to sit at a desk all day.
Of course, you need to be sure that any job requirements you set are job-related and reasonable. For example, don’t set job requirements that aren’t a good measure of fitness for the job or that disqualify those in a protected class at a disproportionate rate — for example, height requirements that might disqualify a large proportion of women compared to men.
Take time to prepare your job descriptions in advance. Don’t try to write on after a lawsuit is filed. The courts take a dim view of that. Get prepared now – before someone brings suit against you.
If you have questions or concerns about whether your job descriptions will hold up to legal scrutiny, contact Johnson Employment Law for guidance, 949-238-8044.