Job descriptions often fall to the bottom of the human resource “to do” list. An audit of almost any company’s job descriptions will reveal job descriptions that are outdated, vague and carried forward from the company’s distant past. In addition to the basic function of letting employees know what job duties are expected from the position they hold, there are at least two straightforward legal issues that should motivate an employer to put energy into making sure its job descriptions are current and accurate. First, wage and hour misclassification claims continue to rise and any defense of an employee’s classification as exempt requires evidentiary support. Job descriptions are the starting point for such written evidence and can either provide tremendous support for an employee’s exempt status or substantially undermine that exempt classification. Second, whenever an employer is requested to make reasonable accommodation to a disabled employee under the Americans with Disabilities Act (“ADA”) or its state counterpart, the analysis of whether the accommodation is reasonable requires review of the essential functions of the employee’s position and an analysis of whether the disabled employee can perform those essential functions with or without the reasonable accommodation. Failure to accurately describe the essential and the less essential functions of a position in a written job description makes it much more difficult to defensibly engage in the interactive process about reasonable accommodation.
What should employers do to make sure their job descriptions do not undercut the classification of a position as exempt?
First, make sure the classification of exempt or non-exempt is not driven by the position title. For example, a “manufacturing engineer” may be properly classified as exempt or non-exempt depending both on duties the position entails and the degree requirements for the position. The “engineer” reference in the job title should not be used to dictate automatic exempt status under the professional exemption. Second, if your company classifies a position as exempt because its “primary” duties are exempt, make sure the job description uses language about those primary duties that fully captures the scope and nature of the duties. Similarly, if the position’s exempt status is based, in part, on the incumbent’s exercise of independent judgment and discretion, the job description should reflect the scope, nature and substance of the independent judgment and discretion the incumbent is expected to exercise. Finally, as a general matter, make sure the job description actually lines up with what the incumbent in the position actually does on a day-to-day basis. This effort will require collaboration between the human resource function and line management.
How should employers ensure that their job descriptions are helpful and not a hindrance to the reasonable accommodation process?
Under the ADA, an employer is required to reasonably accommodate an employee’s disability. However, an employer is allowed to insist during the reasonable accommodation process that the disabled employee be able to perform the “essential functions” of the position notwithstanding the proposed reasonable accommodation. A written job description is the best evidence of what the essential functions of a position are. Moreover, the job description can provide a productive road map for engaging in the reasonable accommodation process with a disabled employee. From this perspective, the best job description is one that accurately captures the essential duties of a position and, to the extent there are ancillary and less important duties, properly distinguishes between the two categories. An out-of-date job description that does not accurately describe the current duties for a particular position will undermine an employer’s position or defense that a particular function is essential to the position. Again, the key to a helpful job description is accurately capturing the duties performed by the position and paying particular attention to documenting which duties or functions are “essential.”