Job descriptions can be an employer’s best document
By Susan Eisenberg and Jennifer T. Williams
A job description, when properly drafted and updated, can be an invaluable document in litigation of employment claims. On the other hand, an inaccurate or outdated job description can tank a good defense.
Job descriptions are documents that employers often draft in haste and, once drafted, are rarely updated.
To understand how a job description can affect litigation, consider how they are relevant to two specific situations: wage and hour claims and disability claims.
Wage and Hour Claims
One of the most common claims is that a position has been misclassified as exempt from overtime. The plaintiff is therefore looking for back wages in terms of overtime for hours worked over 40 in a week. The employer may have classified the position as exempt based upon one of the “white collar” exemptions: executive, administrative, professional, computer and outside sales. Each of these exemptions requires that employees perform certain duties.
If the job description does not accurately list those exempt duties, such as supervising two or more full-time equivalents, for the executive exemption, it is easy for the employee to claim that the position did not require them to perform those duties and therefore they were misclassified as exempt from overtime. If the job description has all the right bells and whistles, it is good documentation to support the employer’s position. Best practices: review and update the job descriptions of all exempt employees and make sure it supports the exemption. Courts will not consider the job description when determining if an employee is improperly classified.
Has an employee ever requested an accommodation for a disability? If so, you have probably heard the phrase “essential job functions.” The essential job functions are the things an employee absolutely must be able to do in order to perform his or her job. When an employee has a disability, employers need to consider the essential job functions to determine if the employee can perform the essential job functions with or without an accommodation.
If a job description, which will generally list the essential job functions, is not up to date, it might not accurately reflect the essential job functions. An employee might not be able to perform the actual job requirements, but can perform those listed in the job description. Thus, you have essentially provided them with an alternative job. Don’t forget, if the position requires that employee actually be at work (as opposed to working from home), the job description should list regular attendance in the office as an essential function.
As you can see, your job description can make or break your case and affect your decision-making when it comes to classifying employees and handling disabilities. Updating your job descriptions to accurately reflect the job duties is a good way to protect the company from exposure for damages to employees. ♦
Susan Eisenberg and Jennifer T. Williams are labor and employment partners in Cozen O’Connor’s Miami office. Eisenberg can be reached at firstname.lastname@example.org and Williams can be reached at email@example.com.