Is there any aspect of the employment relationship that is more mundane than a job description? There was a day when they were commonplace in virtually every employment setting. They were used in the ubiquitous “Help Wanted” ads in the newspaper and in other similar advertisements. For some unknown reason, perhaps the technological revolution, they became less and less prevalent. In some industries today, it is only the unusual employer that has job descriptions in place. However, they are slowly coming to the fore again. Ultimately, mundane or not, they can play a critical role in today’s workplace in a variety of issues.
The Law on Job Descriptions
There is no federal or state law, rule, or regulation that mandates job descriptions. However, well-written job descriptions that clearly set out the “essential functions” of each job can help avoid or at least help successfully defend some legal claims, as well as contribute to the operational success of the company. They can obviously play a significant role in decisions regarding hiring, promotions, and evaluation of job performance.
Job Descriptions and the Americans with Disabilities Act
A well-written job description provides guidance for the interview questions used in the selection of the best candidate for hiring or promotion. The “essential job functions” serve as objective criteria for arriving at a decision. Job descriptions are used to monitor performance after the person is hired. They also provide the basis for determining whether a person with limitations due to a disability can be reasonably accommodated in that position as required under the Americans with Disabilities Act, as amended (ADAAA). A person who cannot perform the “essential functions” and where no reasonable accommodations is available, can be denied employment as an unqualified individual. Similarly, a well-drafted job description can serve to support employer decisions to not promote or to terminate that are challenged as discriminatory or unfair. Thus, job descriptions can be crucial tools in making decisions from recruiting on and through the many aspects of the employment relationship.
The Basics of Job Descriptions
The typical job description has four areas of primary focus: 1) A brief description or overview of the job; 2) A listing of job requirements such as experience needed, educational requirements and similar information; 3) A list of the “essential functions” or duties of the position, and 4) Job-related information such as hours, physical requirements and general working conditions, such as hot/cold environment. The essential functions are the job duties – the core elements of the job at issue and by far, the most critical aspect of any job description. These are the specific duties of the position and those that a disabled employee must be able to perform with or without reasonable accommodation. If a person disabled or not, is unable to perform an essential function and no reasonable accommodation is available, they are deemed not qualified for the job.
Often overlooked in listing the essential functions of a job is the ability to work overtime if overtime is regularly or even occasionally needed at that position. Both federal and state courts have ruled that overtime can be an essential function, often pointing to the job description as a basis for so ruling. In addition, some courts have agreed with employers that regular attendance is also an “essential function” of the job.
Some job descriptions also include nonessential functions. These are peripheral duties or functions that if removed would not change the fundamental aspects of the job. For example, a peripheral duty or function of a job could be assigned to another employee to perform as a reasonable accommodation without affecting how the essential functions of the job are performed. Similarly, a peripheral function could be completely eliminated without impacting the performance of the job.
Job Descriptions and Exemptions from Overtime
In addition to the critical role that the essential functions play in hiring, promotions, performance evaluations, as well as under the ADA, they also serve as the gatekeeper for supporting the “white collar” exemptions under the Fair Labor Standards Act (FLSA). Under the FLSA, executive, administrative, professional, and outside sales positions are exempt from the requirement that working beyond 40 hours in a workweek be paid at the overtime rate of time-and-one-half. In addition to the current requisite salary, $23,660 per year except for outside sales, the specific job duties are the primary bases upon which the exemption is premised. The job description is the first line of defense when exempt status is challenged.
Those challenges frequently question whether persons classified exempt as “executive” or “administrative” are in fact performing non-exempt duties more often than permitted. While still relevant under some state wage and hour laws, the percentage of time spent on “exempt” and “non-exempt” duties is largely irrelevant. As long as the primary duty of a person exempt as “executive” is management of the employer or a recognized sub-division thereof, he/she may perform some non-exempt work.
There is no limit under federal law, but as noted, some state wage and hour laws limit the non-exempt work to no more than 50 percent of the time. In the case of the “administrative” exemption, the primary duties must involve the exercise of independent judgement with respect to business matters of the employer. Some non-exempt work may be performed, but the essential duties must relate to management decisions requiring the exercise of independent judgement. The job description should list a range of the required duties that demonstrate the use of independent judgment to assure that the exemption is supported by the specific job duties.
Taking the time to update your job descriptions, or to create them if you have not already done so, will serve you well in making day-to-day workplace decisions. Equally important, they may be critical in defending a failure to accommodate claim under the ADAAA as well as a challenge to exempt status.
Richard D. Alaniz is a partner at Alaniz Law & Associates, a labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over forty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article, or requests to subscribe to receive Rick’s monthly articles, can be addressed to Rick at (281) 833-2200 or email@example.com.
See inside February 2019
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