When is the last time your company did a comprehensive review of its job descriptions? Never mind; it doesn’t matter. It’s time to do it again.
The job description is an incredibly valuable tool for an employer, and an astounding number of businesses either do not have them, do not update them, or spend so little time on them that they are useless. As I discussed in my June 30, 2015 blog post The Wait is Over: New FLSA Regulations Issued by DOL, the US Department of Labor issued new proposed regulations for determining whether employees meet the Executive, Administrative and Professional exemptions to the FLSA. Although the proposed regulations address only the salary test, it is very possible that the DOL will also look at the duties tests in conjunction with this comprehensive review. Even if the duties tests are not amended, now is an excellent time for employers to review their job descriptions and how they have classified their employees and make the appropriate changes. Undoubtedly, almost every company will discover that at least some employees need to be reclassified and some job descriptions need to be changed.
Properly drafted and accurate job descriptions provide important evidence to justify an exempt classification in the event of a DOL audit. In addition, job descriptions are critical documents in the following scenarios:
Performance Evaluation: An accurate job description provides an applicant or new employee with a comprehensive description of his or her job responsibilities. When it comes time for the annual performance evaluation or a performance discussion, it is important to have in writing the duties of the position against which performance can be measured.
ADA Accommodation Requests: Most employers are obligated under the Americans with Disabilities Act (“ADA”) to provide reasonable accommodations to otherwise qualified disabled individuals. An accommodation must be provided if it allows the employee to perform the essential functions of the job without causing an undue hardship to the company. In order to determine whether that request can be fulfilled, the employer and employee must engage in an interactive process to discuss the needs of both parties. Without a written document setting out the essential functions of the job, it is almost impossible for the employer to document how it undertook the interactive process and to justify the decision made. In the event of a discrimination claim, the job description could help provide important defenses.
Return to Work/Fitness for Duty: In order to evaluate whether an employee out on worker’s compensation leave can return on light duty or whether an employee previously on FMLA leave due to a serious health condition can return and safely perform his or her job, a medical examination is likely required. It is critical that the examining physician be provided a comprehensive job description setting out the job requirements.
In order for a job description to be considered complete it should contain the following depending on the nature of the job:
- Educational requirements including degrees or certifications
- Skills and experience
- Soft skills such as communication, empathy for others, ability to interview, need to work in a team environment or open concept space which might be noisy
- Hours and days of work
- Physical requirements including lifting, bending, twisting, standing
- Amount of discretion and judgment required for the position
- Responsibilities for managing others
The task of creating or even reviewing and updating job descriptions is arduous. It requires the input of many: upper management, direct supervisors, human resources and the employee who performs the job. Perhaps even an occupational nurse should be consulted. Although the process is time consuming and challenging, it is a critically important risk management tool to protect your business at many different levels and from many different potential challenges.