The Amason Consulting Group - AmasonConsulting.com

By Trish Lewis, Esq.
tlewis@epexperts.com
and
Susan Amason
susan@amasonconsulting.com

DISCLAIMER: This paper may be reprinted or redistributed as long as header and footer are kept intact and not removed. The purpose of this paper is to provide general information on employment related issues. None of the information contained herein should be construed as legal advice. If you need legal advice, please seek the advice of independent legal counsel. EPS does not guarantee the accuracy of the papers or excerpts. See the full Legal Disclaimer on our website for more information.

Secretary (aka “Gal Friday”): Primarily responsible for answering the switchboard, typing on an electric typewriter, and making coffee.

Personnel Manager: Responsible for ordering office supplies, scheduling office parties, and distributing paychecks.

These are a sample of the job titles and general descriptions staring at you on your first day as a “Personnel” Manager. Your new employer has very few job descriptions and those that do exist have not been revised in more than a decade. Not only are the job titles wrong, but the descriptions contain almost no information relevant to the jobs as they exist today. Your mission: Revise the job descriptions so that they accurately describe the jobs without exposing your employer to legal risks.

Writing job descriptions can be a daunting task and not one that many people look forward to doing. Like vegetables, we know that they are “good for us,” but they are not always our first choice. Comprehensive up-to-date job descriptions, however, provide healthy support to any business.

The Business Case for Job Descriptions

Job descriptions serve a variety of purposes and touch every aspect of the employment relationship.

Employment: Once an employee is on board, a job description provides a supervisor and employee mutual understanding of the job expectations. Used as a reference for training initiatives and as a basis for performance appraisal standards, job descriptions are important tools in developing the employee/employer relationship.

Job descriptions are also an essential ingredient of a comprehensive compensation program. A job description provides a basis for job comparison to market data collected for that job. It also is a helpful tool in developing a job worth hierarchy. It typically reflects the value of the job and the relationship of the jobs in the organization to each other.

The Legal Support for Job Descriptions

With one minor exception,1 job descriptions are not required by law. Nevertheless, a well-written job description can provide a basis for a legal defense for cases involving the ADA, as well as the FLSA, and potentially other laws.

According to the EEOC, while the ADA does not require an employer to develop or maintain job descriptions, a written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence in determining essential functions (along with other relevant factors).2 Therefore, an employer with a well-written job description that is consistent with its hiring decision will have a more substantial defense than an employer who does not have a job description, has a poorly worded job description or has one that is inconsistent with the actions of the employer.

Writing a Job Description – The Critical Elements

While the style and format of job descriptions may vary from employer to employer, one consistent truth remains: do not bog down job descriptions in details. A job description is not a procedure manual. If you start enumerating tasks, you have taken it one step too far.

Too many details renders it much harder for the reader to identify important information and much more difficult for the employer to maintain the job description with current information.
Too many details also lead to the trap of too narrowly defining positions rather than jobs and ultimately creating a huge administrative burden of maintaining unnecessary descriptions. Always conduct a sanity check on the descriptions and make sure there are enough significant differences between the jobs to substantiate having different descriptions. Remember, erring on the side of too generic is often a better business decision.

Regardless of the style and format, there are a number of critical elements to include in every job description.

The FLSA status indicates whether the job is considered to be exempt or not exempt from the requirements of the Fair Labor Standards Act. The specific duties of the job, not the job title, is determinative of the status. A smart employer is familiar with the FLSA regulations, takes the time to carefully review all of the jobs within the organization, and ensures that they are classified appropriately.

2. General Summary

The General Summary is a brief description of the general nature and purpose of the job. Draft the General Summary to remain consistent with the rest of the job description. For example, a General Summary of an HRIS Analyst position might read, “Responsible for the administration, liaison and coordination of human resources system projects in meeting all professional standards for human resources and systems development and implementation.” The specific duties in the job description should explain how these responsibilities are carried out.

3. Essential Functions and Responsibilities

It is imperative that only those functions that are fundamental to the position are listed under the Essential Functions and Responsibilities section. This information is critical as it could be the key to an employer’s defense to a lawsuit under the Americans With Disabilities Act.4 The EEOC Technical Assistance Manual lists several reasons why a function could be considered essential:

• The position exists to perform that function. For example, an employer advertises a position for a “floating” supervisor to substitute when regular supervisors on the day, night, and graveyard shifts are absent. The only reason this position exists is to have someone who can cover for an absent supervisor on any of the three shifts. Consequently, the ability to work any time of day is an essential function of the job.

The first step in identifying the essential functions of the position is to identify the primary purpose of the job. Once that is done, determine the importance of each function in achieving this purpose. Consider several factors:

The actual verbiage for the essential functions of the job requires care and thought, following the guidelines listed below:

• Specify work objectives/outputs.

• Reduce hyperbole and try to use sentences that answer "what" and "why" questions rather that "how".

As long as essential functions are specific enough to identify, an organization may word them in a very detailed or more general manner. Essential functions should never include the following language, “Performs other duties as assigned.” If it is an essential function, it needs to be described.

To avoid exposure under the ADA, it is critical that the job description language focuses on the results and not the methods. While performing essential functions is fundamental, one particular manner of performance is often unnecessary, unless doing otherwise would create an undue hardship. It is often possible for employees to perform the same functions in different ways. For example, it is superfluous to include “answers the telephone in a pleasant and friendly manner”; “answers the telephone and directs callers to the appropriate party” is to the point. It is safely assumed that no organization wants to deter potential callers with an unpleasant demeanor.

• “Communicates” rather than “talks” or “hears”

• “Moves” or “transports” rather than “carries”

• “Operates” rather than “feels”

4. Non-Essential Duties

Non-essential duties are somewhat significant duties that are performed occasionally. They do not affect the essence of the position. In many instances, a job may not have any non-essential duties.

Every job description should include the minimum qualifications for the job. List knowledge, skills and abilities (KSA’s). In addition, education and experience are important to note. List any required or preferred certifications or professional designations.

It is imperative that the minimum qualifications support the essential requirements. Avoid inflated or arbitrary qualifications; rather, adhere to a listing of realistic and specific qualifications that are required of all employees in that position. Organizations may include preferences and substitutions (e.g., 4 years of professional experience or a bachelor’s degree) in addition to requirements.

6. Working Conditions

Another essential element is a description of the physical environment in which the work is performed. This includes anything from a typical office environment to a warehouse with cement floors to an outdoor landscaping environment. Include any unusual conditions, such as hazards, loud noises, or extreme temperature.

7. Physical Demands

Include physical demands in the job description only if they are required of the essential functions. Again, use unbiased language as much as possible. Some tasks, however, require specific physical movement. If this is the case, note the frequency, intensity and/or duration of the movements to help establish the level of the work demand. It is also helpful to indicate the operational link to establish the importance to the job.

A physical demands description could read as follows: “Frequently moves and positions objects weighing up to 50 pounds when stocking warehouse.”

Additional Elements to Include in a Job Description

There are a number of other less critical elements that may be incorporated into a job description.

This indicates the positions that report to this job and the position to which this job reports. It helps the reader see where the job fits within the organizational structure. It also helps employees identify a career ladder.

A disclaimer is typically used to point out that that the job description does not include every duty or responsibility that the employee may be asked to perform at some point in time. Some typical disclaimers are as follows:

• Management may, at its discretion, assign or reassign duties and responsibilities to this job at any time.”

• “The duties and responsibilities in this job description may be subject to change at any time due to reasonable accommodation or other reasons.”

3. Dates and Approvals

It is often helpful to include the date the job description was written/revised and who approved it. This helps insure that the most current description is in use, that line management approval was obtained, and Human Resources was included in the approval process.

Keep Your Job Descriptions Current

Once the job description is written, approved, and put into use as appropriate, it is imperative to update the description regularly as it can serve an important role in employee lawsuits, charges or complaints. To ensure this happens, an employer is well advised to appoint one employee in charge of maintaining the job descriptions, to review them on a periodic basis, and update them as necessary. Ideally, review the descriptions on an bi-annual basis and update job descriptions whenever the responsibilities and activities of an existing position substantially change. More frequently review descriptions where job functions are constantly changing (e.g., due to technological or organization reasons).

An employer who allots the appropriate time, care, and resources to drafting and maintaining clear, thorough, well-written job descriptions will benefit substantially from both a business and legal perspective. Employers should not miss out on taking advantage of this simple, yet important, opportunity.

1 Environmental Protection Agency Regulations require job descriptions for jobs where employees handle or dispose of hazardous waster such as oil, antifreeze, transmission, fluid, auto parts clearer, paint thinner, etc. 40 CFR sec. 264.16.
2 EEOC Technical Assistance Manual S 2.3(a)
3 29 U.S.C. 201 et seq.
4 42 U.S.C. §§ 12101 et seq.
5 EEOC Technical Assistance Manual S 2.3(a)
6 Id.