Employers’ Disdain for Job Descriptions
Anytime I ask a client if the Company has executed job descriptions for each one of its employees, I am always met with a similar crass response, which goes something like this:
“No, I don’t need that; don’t waste our money on drafting job descriptions. First of all, if I wanted a job description prepared for every employee, I could hire my five year old to do it. Second, they serve no (bleeping) purpose, other than to detail everything that no-good employee should be doing. Third, I only want what I need to defend lawsuits. It’s the same ploy car salesmen use when they try to sell me the extra warranties on my leased car.”
To Which I Respond …
Five examples where job descriptions provided a full or partial defense to employers I have represented:
- Basis for Immediate Dismissal if Misrepresentations or Omissions of Qualifications. If the Employer learns information later that Employee was Not Qualified for the position or made any misrepresentations. The job description sets forth the essential qualifications to perform the job, at the beginning of employment, which the employee must certify that s/he is fully qualified and any misrepresentation, falsification or material omission of information may result in denial of employment, or if hired, or currently employed, the employee’s immediate dismissal from employment.
- Defense to Misclassification Claim on Exempt/Non-Exempt Status. Wage and Hour claims are some of the most expensive lawsuits to defend, even when the employees are not misclassified. A well-drafted job description that fully incorporates all of the duties that meet the exemption requirements under state and federal laws provides a strong defense to employers.
- The Basis for Documenting Performance Issues, Reviews, and instituting Disciplinary Action. A detailed job description setting forth the specific expectations of the employer and the job duties that the employee is required to perform is a critical document when an employee is not performing because it is the very first document signed by the employee locking in what is expected of him or her.
- The Basis for Assessing Accommodation Requests for alleged Disabilities, under the Americans with Disabilities Act and/or the State equivalent and the Family and Medical Leave federal and state family leave laws. For employers who are subject to these laws, the employee must certify in executing the job description at the beginning of employment, that s/he is qualified to perform the position described, and can, with or without reasonable accommodations, perform the “essential functions” of this position. If the employee claims to be disabled or need a protected leave, the job description setting forth the essential functions and physical and mental requirements required to perform the essential functions, becomes critical in assessing employee’s accommodation and family leave law requests. Indeed, the employer typically is asked to provide the treating physician with the job description to enable them to make these assessments.
- Certification of Compliance with the Company’s Employment Policies and General Work Habits. While most employers have Employee Handbooks, often times, they do not emphasize the most critical policies, especially as the laws change. By highlighting specific employment policies again in the job description that are crucial to employers, it gives another basis for relying on if the issue arises. In addition, often time employees may perform the essential duties, but other work habits become an issue, which are usually not addressed in Employee Handbooks. By preparing a section of the job description describing all of the work habits that routinely occur, the employer can rely upon it, if the issue arises.
Fine, You Win, but How Do You Propose Preparing Job Descriptions Cost-Efficiently?
Even for a small employer, the preparation of job descriptions can take significant time to prepare. Because job descriptions are fact-specific, the most cost-effective way to prepare them is to permit the employment attorney to meet with the head of each department to ask the pertinent questions to make an initial legal determination if all the positions in the department are exempt or non-exempt, based on their actual duties and responsibilities.
Once a template is prepared to meet the needs of the employer identified above, management must carefully review and provide detailed factual information to ensure that everything expected of the employee is included, as well as, to delineate the essential vs. non-essential duties, the essential qualifications and the physical and mental requirements for each position. If current employees are working without a job description, it is crucial to include the employees in the process to ensure that it accurately describes what the employee is doing.
While drafting job descriptions is about as exciting as watching grass grow, its value pays off in spades. Indeed, the fully executed job descriptions by company employees that I drafted for three different positions was absolutely key in persuading plaintiff’s counsel to dismiss a class action complaint alleging misclassification of employees as exempt against my client.
Need I say more? I rest my case.