Legal Reasons to Draft and Update Job Descriptions
- They help you defend against discrimination claims. Creating job descriptions, which includes qualifications needed for the position, is a good defense in case of a discrimination claim. Applicants may claim that they were rejected based on their race, gender or age, but having the job description can show a court that you rejected them because they didn’t meet all the qualifications needed.
Note: Should you find yourself in a situation where you have multiple candidates that meet all the qualifications of the position, it is perfectly legal to base your hiring decision on unwritten criteria or a gut feeling. But to be cautious, it is best to base your decisions off of the criteria that is within the job description.
- They help determine “essential functions” for ADA purposes. ADA lawsuits may arise if an employee can prove that they’re legally disabled and can still perform the “essential functions” of the job. Vague job descriptions can be left open to a court’s random interpretation.
Break down the essential functions of a position and identify the purpose of the job, the frequency of each function and any consequences if they functions aren’t performed. Not only should the description include the essential functions, but also the nonessential and less-frequent requirements.
Four-key categories to include:
- Physical skills (e.g., standing, walking, lifting, bending)
- Learned skills (e.g., equipment proficiency, industry experience)
- Job duties (e.g., travel, hours, shifts)
- Behavioral skills (e.g., communication, leadership, time management)
- They help you classify employees as exempt or non-exempt. Exemptions from the overtime rule of the Fair Labor Standards Act (FLSA) are determined on job duties, not job titles. Job descriptions need to match the reality of the job, not just what management thinks the job should or would like the job to entail.
Requiring a master’s degree for a position when a high school diploma will do may unfairly exclude applicants and lead to a discrimination lawsuit. And having it in the description that managers are allowed to hire and fire employees, but not actually giving them that power, could qualify them for overtime pay as a non-exempt employee under the FLSA.
Some common traps to avoid when creating job descriptions:
- Describing the employee instead of the job. If you describe a position based on a previous employee who occupied the position, then you’ll be on a crazy witch hunt looking for an exact clone of the ex-jobholder.
- Using imprecise language. Job description language should be direct, clear, short and simple, and should emphasize the skills and purposes of the position. Begin each requirement with an action verb in present tense, such as supervise, inspect, produce, organize, motivate, educate, administer, compose, analyze and repair. And avoid gender-based language, such as “salesman.”
- Not being specific enough. You should be stating exactly what you want the applicant to do. Incorrect: “Quality control inspectors should inspect finished products.” Correct: “Inspect nuts emerging from production process for burrs. Place nuts with visible burrs in scrap box.”
For more information contact firstname.lastname@example.org. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.