The Power of Job Descriptions: Do Them, and Review Them
Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
Job descriptions are the Rodney Dangerfields of the workplace – they don’t get no respect. In fact, however, a properly drafted job description can be a legal life-preserver that can save tens, even hundreds of thousands of dollars in potential liabilities and legal fees. Consider these two, very common scenarios.
The ADA Scenario
Suppose you have a loading dock supervisor, Isaiah Hertz (think about it …) who suffers a permanent back injury and cannot lift more than 20 pounds. Your obligation under the ADA is to determine if there is any reasonable accommodation that will allow Hertz to perform the essential functions of his job – if there is, you must provide the accommodation, but if there is not, you may replace him. Remember that the ADA does not require you to change the essential functions of the job to suit his disability.
You know that 50% of Hertz’s job entails loading and off-loading boxes from trucks, most of which weigh over 20 pounds. There is no possible reasonable accommodation – this is a central aspect of his job, and he can either do the job, or not. You offer Hertz a different, lower paying position. He refuses. You terminate him. A week later, you get notice that he filed an ADA claim against you.
Hertz claims that the ability to lift 20 pounds is just a tangential part of his job, and not one of the essential functions, all of which he can still perform. As proof, he submits your offer letter, sent two years previously:
We are pleased to offer you the position of Loading Dock Supervisor. Your duties will entail the supervision of other loading dock personnel, the efficient scheduling of shipments and receipts, and the proper use of the Company’s shipping and receiving software. In addition, on occasion (for example, in the event of employee absences), you may be required to assist loading dock personnel with loading and off-loading duties.
In fact, your business volume decreased over the last several months. As a result, you eliminated one loading dock employee, and instructed Hertz to spend half his time on his supervisory duties and half his time loading and off-loading trucks. Hertz says that is true, but everyone knew that this was only a temporary change in his duties – as documented by the fact that you never revised his job description. If his duties had permanently changed, he argues, you would have so stated in writing.
Maybe you will win that case. Maybe not. But had you created a job description that accurately described Hertz’s revised duties, the case would have been over before it started. As it stands, in the absence of an updated job description, you will have to pay your lawyer to defend the claim, and if a hearing officer or a jury buys Hertz’s argument, you will end up paying Hertz’s lost wages and his counsel fees as well — a potential six-figure liability.
The Exempt/Non-Exempt Scenario
An employee will be classified as exempt under the “administrative exemption” if (among other things) the employee’s primary duty is the performance of work related to management policies or the operation of a business, and so long as the employee regularly exercises discretion and independent judgment (as opposed to carrying out tasks defined by a supervisor) respecting matters of significance.
Let’s suppose you hire an “IT Administrator,” Liza Round (sorry…), at a salary of $50,000 annually. You classify her as exempt under the administrative exemption. She has substantial experience as a software administrator, and you entrust her with the responsibility to choose and implement the software on which your sales and management functions will depend and to manage all aspects of your sales and management IT, data entry and reporting.
After a year, Round asks for a raise – she says that she should be making at least $65,000. You think she is slow and lazy, and you are not pleased with her work. You tell her you are willing to pay her $55,000, but no more than that. Round explodes in anger, and quits.
Shortly thereafter, Round files a claim under the Fair Labor Standards Act – she says she was never exempt, she was always non-exempt, and you owe her overtime. She also says she kept track, and she worked 550 hours of overtime. Based on her salary and a forty-hour week, she made $24/hour. Time-and-on half for 550 hours is $19,800, plus substantial penalties, plus interest, plus counsel fees.
You have a job description, which you took out of an HR formbook. It states the following respecting the IT Administrator duties:
Responsibilities. The IT Administrator shall be responsible for maintaining the Company’s IT system and supervising data entry in accordance with Company requirements as may be communicated from time to time, and shall report to the the Chief Financial Officer.
That sounds like anything but a position in which an employee regularly exercises discretion and independent judgment on matters of importance. You will have the right to argue that, in reality, Round did qualify for the administrative exemption; Round will dispute that; matters will boil down to a “he says/she says” battle; and your cursory job description will give Round the best “smoking gun” evidence she could have hoped for.
The Job Description Prescription
So, how do you draft a job description? Two points…
First, job description templates that lay out the suggested structure and content categories are readily available, but the most important point is this: the job description must clearly state the essential functions of the job in detail and, if your intent is to treat the position as exempt, make certain that the essential functions describe a position that fits within one of the exemptions provided by the Fair Labor Standards Act.
Second, no less frequently than annually, review your job descriptions to determine if they accurately describe the reality of the jobs they purport to describe, and revise them as necessary.
You will likely need counsel or an HR professional who is well-versed in the nuances of the FLSA. Let us know if we can help.
Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at firstname.lastname@example.org. See www.powelltrachtman.com for more information.