Job descriptions can be a shield or a sword for employers. In addition to setting clear job expectations, informing candidates of what the job entails, and providing a framework for evaluations, they are often used in litigation arising from workplace claims.
Job descriptions can be critical in litigating actions under the Fair Labor Standard Act, the Americans with Disabilities Act and the FMLA. Most employers know job descriptions are important, but are you doing them right? Let’s look at how they can be used in different workplace claims.
Wage and Hour litigation
Wage and hour litigation often involves claims that employees were not properly treated as exempt from overtime and record-keeping requirements of the Fair Labor Standards Act. In order to be exempt under the FLSA, an employee must both 1) be paid on a salary basis (meaning he/she receives a guaranteed minimum for each week in which the employee performs any work), and 2) meet the duties tests of one or more of the recognized exemptions.
Employers should draft job descriptions using the targeted exemption as the starting point. Let’s say you are hiring a new head of your three-person marketing department and anticipate that person will be exempt under the executive exemption. Let’s say your job description says: “Provide oversight and direction in the operating unit in accordance with the organization’s policies and procedures.” In litigation concerning whether the employee is properly treated as exempt, that description isn’t likely to be much help – it doesn’t describe the actual duties in a way that aligns with the duties test for the executive exemption. To better align with the duties test, your job description should identify specific responsibilities that show the employee’s primary duty will be managing the department and that he/she will have substantial authority when it comes to hiring, firing, promotion and discipline of employees.
Be careful using terms like “support,” “help with,” and “assist with,” as those words can reflect diluted responsibilities of an employee. Merely “supporting” another employee who is fulfilling an exempt task may not be enough to impute the exempt task to the supporting employee. For example, if you are describing an IT employee, saying he/she “provides support to the software team” won’t likely cut it. Instead, highlight the employee’s underlying activity that supports the software team, such as “responsible for modifying computer systems or programs related to user or system design specifications.”
Remember, while it’s important to highlight exempt functions, such functions shouldn’t be added to exaggerate the employee’s actual duties. If the employee doesn’t actually perform the duties listed, a plaintiff’s attorney will use that against you.
Americans with Disabilities Act Litigation
Much of ADA litigation centers around whether an employee can perform the essential functions of the job. Job descriptions should make clear what job functions are essential, as the description will be Exhibit A in any litigation.
Employers should be aware that the EEOC makes a distinction between qualification standards and essential functions. EEOC’s regulations say that qualification standards are: “personal professional attributes including the skill, experience, education, medical, physical, safety and other requirements.” In contrast, “essential functions” are those duties that an employee actually performs on the job, such as waiting on tables, sorting packages, repairing computers or whatever.
According to the EEOC, “qualification standards,” should predict whether an applicant can perform the essential functions of the job. For example, the requirement that an applicant be able to lift 30 pounds, seems like an essential function of a job, but the EEOC takes the position it is actually a qualification standard. And employers must always keep in mind that an employee may still be able to perform the essential functions of the job, even if it appears he/she does not meet the qualification standard. Employers must make an individualized assessment and engage in the interactive process if an accommodation is necessary.
Employers should avoid language in job descriptions that, on its face, is discriminatory. For example, don’t use words such as “youthful,” “strong,” or “able-bodied.” Job descriptions should include adjectives that describe the pace of work (“deadline-driven,” “fast-paced”) or the work environment (“exposure to heat and cold,” “enclosed area,” or “noisy setting”).
Multi-site employers should ensure the description is tailored to the specific location because what is essential at one location may not be essential at another.
When an employee is having a medical condition that impacts performance, employers should provide the employee a job description with a list of the essential functions of the job to review with their doctor. It may not be the published job description, as the job may have changed over time. With that list of essential job functions, the employer and employee can work together to determine whether there is a reasonable accommodation that would enable the employee to perform the essential functions of the job.
Family and Medical Leave Act
Job descriptions that reflect actual job duties are equally critical under the FMLA and should be attached to two of the FMLA forms.
First, employers should attach job descriptions showing the essential functions of the job to the FMLA Designation Notice, DOL Form 382. If the employer attaches that description, the employee must provide a fitness for duty certification that addresses the employee’s ability to perform those particular functions to be restored to employment. Again, the description attached should reflect the employee’s actual day-to-day duties and responsibilities. Second, employers should attach the same listing of essential job functions to the Certification of Health Care Provider, DOL Form 380-E, so that the physician can evaluate how the employee’s serious health condition impacts the employee’s ability to perform each of the job functions listed.
Job descriptions present an opportunity for an employer to define a working relationship and set clear expectations. Crafting thoughtful, effective job descriptions are also critical in defending legal claims. They will invariably become exhibits in legal proceedings. If you need assistance with job descriptions or handling leave issues where they come into play, contact your Akerman Labor & Employment lawyer.