By Peter J. Ennis, Esq., Buchanan Ingersoll & Rooney, PC

peter.ennis@bipc.com

Job descriptions can be among the most important employment documents for three reasons.  First, how do you decide what skills, experience or other qualifications you are

Peter Ennis

looking for in a new employee?  How do you decide which applicants are minimally qualified, sufficiently qualified to merit an interview, or best qualified to be hired?  What are the key duties you want the employee to address, once she is hired?  If you have the answers to the foregoing questions, you have the makings of a job description, even if there is nothing in writing.  If you do not know the answers to the foregoing questions, at least generally, then I would submit that you are not in a position to hire or promote the best candidate or make a lawful decision.  One of the key benefits of a written job description is that it forces the employer to think about the foregoing questions in advance and decide what is most important, fairly important or of little or no importance.  While some employers think job descriptions restrict their discretion (which I will address in more detail below), I believe they help employers to focus on factors that will lead to hiring a successful employee.

Second, besides helping employers hire and promote the most qualified employees, a good job description helps establish expectations and avoid surprises.  As I have said a number of times in these postings, one reason why employees sue their employers is that they are surprised by action taken against them.  Where action is taken based on an employee failing to comply with one or more duties or expectations in a written job description, it will be very difficult for the employee to claim that she was surprised.  For example, if the job description says that job requires the ability to work non-traditional hours, an employee hired into that position will not be able to argue that he can only work Monday through Friday, 9:00 a.m. to 5:00 p.m.

Third, unlike many other employment-related documents, a good job description will play an essential role in three types of legal disputes:

1. In deciding whether an employee is exempt from overtime pay under the Fair Labor Standards Act (FLSA), the U.S. Department of Labor (DOL) and the courts will look at written job descriptions to determine whether the duties listed meet one of the tests to be exempt.  While a good job description will not end the analysis, a job description which is not written in a manner to support an exemption will make it much more likely that employee will be found to be non-exempt.
2. In determining what job duties are essential and what types of accommodations are reasonable under the Americans with Disabilities Act (ADA), the EEOC (and its state counterparts) and the courts will look to a written job description.  As with an investigation under the FLSA, the job description will not be the only thing considered, but a good job description (i.e., one meeting the standards set forth below), may be decisive in supporting the employer’s position.
3. In any hiring or promotion case where an applicant or employee was rejected because she either failed to meet the minimum qualifications or was not the best qualified, a good job description will provide objective support for the employer’s position which can be determinative of the outcome.

Before reviewing what goes into a good job description, I want to point out one misnomer.  Many, if not most, “job descriptions” go beyond actually describing the job and include “job qualifications.”  I am going to take this approach, although it is certainly permissible to have a separate document describing the job qualifications.

Information to Consider Including in a Job Description

One common reason I hear for not having a written job description is that the employer does not want to be restricted by a job description and/or they do not want their organization to be structured so formally.  In my opinion, neither reason is sufficient to avoid having a written job description.  Rather, they just go to how the job description is written.  The only exceptions are for very basic positions (e.g., a laborer), in which a list of job qualifications may be sufficient, or sometimes in a union environment where the union actively uses job descriptions to restrict what employees do.

Your organization may not need or include all of the following items in your job descriptions.  The list is designed simply to be a guide.

1. Title.  From an employee’s perspective, a title may be important because of the status derived from the title.  From the employer’s perspective, it can be important to show lines of progression.  For employers who want a relatively flat organization and/or want to avoid formal lines of progression, the title can reinforce that goal by broadly describing a wide range of employees.  For example, everyone may be described as either “manager” or “associate.”  Conversely, unique titles can help define the employee’s role for both the employee and the rest of the organization.  I read a series of postings recently asking what to call someone who was responsible for making sure employees had “fun.”  Suggestions ranged from the basic, “Manager of Fun” (and I am not sure there how many employers who pay for such a person) to things like “Manager of Employee Satisfaction and Engagement.”
2. Reporting Relationship.  Stating to whom the employee reports raises many of the same issues as discussed under title.  This element is also important for those employers who want to make sure that employees are getting proper direction and support.  For example, employers do not want to be in a position where the employees says “I was told to do  ’x’ by Manager A,” when the employee should be getting direction from Manager B.
3. Supervises.  Again, saying what positions an employee supervises raises the same issues as title and reporting relationship.  However, it has the additional role of ensuring that the employee knows her responsibility and, for an employee who is treated as an exempt executive under the FLSA, it is important for the description to identify that the employee supervises at least two full-time equivalent positions.
4. Exempt Status.  Where a job description sets forth sufficient information to qualify the employee as exempt from over-time pay under the FLSA, it is not essential to superficially say that the employee is exempt.  Nonetheless, I believe it helps establish expectations and avoids surprise, and it may play a minor role in a DOL investigation.
5. Summary.  For ease of reference and to identify key job functions, some job descriptions will provide a short summary of the job duties and/or purpose of the job.  If it helps either the employer or employee set or understand expectations, then I would include it.
6. Duties.  Depending on the job, the duties should be written broadly so that they capture key functions, and do not just specific duties.  For example, it might refer to “managing x,y,z” or “coordinating a,b,c.”  In addition, the functions/duties should be divided between “essential” and “other.”  While those terms do not have to be used, “essential job functions” is a phrase used under the ADA, so it is worth at least considering using that word or phrase.  The other benefit about using a word like “essential” is that it helps both the employer and employee focus on what is important.  “Other” job duties should be listed because, even though they may not be essential and, thus, could not be a barrier to employment under the ADA, if they are duties that the employer may want the employee to perform, then they should be listed.  Finally, all job descriptions should include a statement saying something like: “Other job duties as assigned by management.”  This gives the employer flexibility to assign different job duties as needed.
7. Physical Demands.  If there are any specific or unusual physical demands of the job, those should be listed.  Not only will they set the expectations for the employee, but they will help the employer defend against a claim under the ADA.
8. Work Environment.  Again, if there is anything specific or unusual about the work environment, they should be listed because, like physical demands, they help to set expectations and provide a defense where an employee cannot meet them.  Work environment would include such things as work hours (including weekend work), whether the job involves working outside or in hot or cold environments, noise levels, travel requirements, particular stressors in the job, etc.
9. Americans With Disabilities Act.  Some job descriptions either have a separate section, or include as part of the physical demands or work environment, a statement that the employer will make reasonable accommodations under the ADA.
10. Job Qualifications.  As set forth above, these are not job duties, but they are often included in job descriptions.  One reason to do that is, once you have established the essential job functions, the job qualifications should be tied to those functions.  To give an obvious example, if an employee is not going to supervise anyone, then managerial experience is not an appropriate job qualification.  On the other hand, if an employee is going to manage the accounting department, then having management experience and a degree in accounting may be critical.  Job qualifications are generally broken down into three categories: education/certifications/licenses; experience; and job knowledge, skills and abilities.  Furthermore, where appropriate, they can be further divided into “minimum” and “preferred.”  Minimum allows you to reject anyone who fails to meet those requirements, while preferred helps to define the best candidate.  Both categories can provide a defense in an employment lawsuit, as long as they meet the standards set forth below.

Are There Downsides to a Job Description?

Yes.  A job description which is inaccurate can lead to bad decisions by the employer (e.g., an employee who three months into the job says, “this is not how the job was described,” or “I do not think I am suited for this job”), unlawful decisions (e.g., rejecting a minority applicant for not meeting the minimum job requirements when those requirements are not tied to the ability to perform the job), or put an employer in a position where the job description is being used against it, rather than supporting it (e.g., a job description which shows that an employee who is treated as exempt from overtime is not, in fact, exempt).

The other downside to an inaccurate or poorly written job description is that it can lead to disputes in which the employee is able to say, “that is not part of my job description.”

Best Practices in Drafting Job Descriptions

To help ensure that a job description is accurate and up-to-date, first ask the incumbent employee and manager of the employee what the job entails.  As part of that discussion, get an understanding of what is essential and non-essential.

Second, make sure what the incumbent and manager tell you is consistent with what you expect from the job.  The incumbent may be doing something because “that is the way it has always been done.”  If there are duties that you do not want or need the employee to perform, or duties you want to add, make sure those are communicated to the employee and manager.

Third, write the job duties broadly to ensure the employer has flexibility, and also include the catchall saying other duties “as assigned.”  In addition, ensure that you use terminology that is consistent with any exemption you are going to claim under the FLSA.  For example, if you are going to claim that someone is an exempt administrative employee, make sure you say that the employee exercises independent judgment and discretion over matters of significance, at set forth duties that support that language.

Fourth, make sure the job “qualifications” are tied to the essential job functions.  Because of the legal impact of those qualifications, and the job description in general, it would be worthwhile having them reviewed by a human resource professional and/or an employment lawyer.

Fifth, have the employee sign and date the job description saying that she understands those are her duties.

Finally, review any job description when you have reason to believe the duties may have changed (e.g., there is a different reporting structure) or where an employee has been in a job for a long-time (e.g., three or more years), so that the job duties may have evolved over time.