Avoid legal issues with compliant job descriptions

Job descriptions provide an overview of a job’s core duties and expectations and play a crucial role in legal compliance. They’re used to help convey the critical components of the job to potential applicants. However, they also serve some important purposes regarding legal compliance with laws such as the Fair Labor Standards Act (FLSA) and the Americans with Disabilities Act (ADA). Accurate and up-to-date job descriptions are essential for ensuring compliance with these laws, as they provide a clear understanding of the job’s requirements and help determine the appropriate classification of employees.

Keeping up with the various legal issues related to job descriptions can take a lot of work due to the ever-changing nature of employment law. This complexity underscores the need for HR professionals to stay updated and adapt their practices to ensure legal compliance, fostering a sense of continuous learning and improvement.

Legal Issues to Consider When Crafting Job Descriptions

Compliance concerns govern what you should or should not include in job descriptions. Written job descriptions are also crucial for supporting other compliance processes such as disability accommodations, FMLA leave, and compensation management.

Fair Labor Standards Act Compliance

The Fair Labor Standards Act (FLSA) is a federal law providing many important guidelines around labor issues such as compensation, employment classification, child labor, etc. Employee classification is the primary concern regarding the FLSA when creating and updating job descriptions. Job descriptions should typically state whether the role is considered exempt or nonexempt from overtime compensation.

The exemption status of a role depends on the job duties and requirements of the position. With a written, up-to-date job description in place, you can quickly and accurately evaluate whether an employee qualifies as exempt.

In the event of a DOL investigation, not having an up-to-date job description that both the employee and employer are aware of can be a significant problem. Suppose you’re not on the same page. In that case, the employee may provide a different set of duties or mix of responsibilities to the DOL investigator, resulting in a considerable overtime bill if the DOL decides they were incorrectly classified as exempt. This highlights the urgency and importance of crafting compliant job descriptions to avoid costly consequences.

Job descriptions should take these exemptions into account:

  • Administrative exemption: Qualifying administrative employees may be classified as exempt if their primary duty is office or non-manual work, and they may exercise discretion and independent judgment concerning matters of significance
  • Executive exemption: Employees qualify for an executive exemption if they have a primary duty of managing the enterprise or recognized department, regularly direct the work of two or more full-time employees, and have the authority to hire and fire workers.
  • Highly compensated employee exemption: Employees are considered highly compensated if they earn at least $684 per week paid on a salary or fee basis, and at least $107,432 in total annual compensation.
  • Professional exemption: Learned professionals or creative professionals who earn the minimum pay rate. Creative professionals must perform work requiring invention, imagination, originality, or talent in a recognized artistic or creative field. Learned professionals must complete work that requires advanced knowledge in a field.
  • Other role-specific exemptions: Those designated for outside sales and computer professionals.

Americans with Disabilities Act Compliance

The Americans with Disabilities Act protects employees and applicants with disabilities from job discrimination. The ADA requires employers to offer reasonable accommodations for disabled applicants or employees to perform the job’s essential functions.

Non-essential functions of the job do not have to be performed. Thus, disabled workers must know which tasks are classified as essential during the application stage and throughout employment. The ADA does not require an employer to develop or maintain job descriptions. However, having one in place can be helpful for ADA compliance.

A written job description prepared before advertising or interviewing applicants for a job will be considered evidence in determining essential functions and other relevant factors. Listing out and categorizing the essential and non-essential functions yourself usually gives the employer a leg up, as courts most frequently defer to your designation.

However, in the event of a dispute over the job description, it’s essential to have a transparent process to resolve such disputes. This can involve reviewing the job duties with the employee, consulting with legal counsel, or seeking a third-party opinion. A transparent process for handling job description disputes can help employers navigate potential legal issues.

Family and Medical Leave Act Compliance

The Family and Medical Leave Act (FMLA) is a federal law that allows eligible employees to take job-protected unpaid leave for specific family or medical reasons. When employees request FMLA leave due to severe health conditions, a medical provider must submit documentation affirming that the employee’s health condition is or is expected to impact their ability to perform the essential functions of their job. To do this, the provider will typically need to review an up-to-date job description to understand the critical functions of the role.

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) is a federal law that protects pregnant employees. Reasonable accommodations must be made for conditions related to pregnancy.

A job description listing the essential and non-essential functions can help employers, medical providers, and pregnant employees assess what can and cannot be done during pregnancy. However, remember that the PWFA dictates that some essential functions may have to be reassigned or dropped as a reasonable accommodation during pregnancy or the postpartum period.

Equal Pay Act Compliance

The Equal Pay Act (EPA) is the primary law guaranteeing equal pay for equal work. When jobs are equivalent, a difference in pay must be due to a factor other than sex. Job descriptions are used to determine equivalence.

A federal court recently ruled that using past salary history to determine the current salary level for new hires violates the Equal Pay Act plus many states and cities have enacted similar requirements. When setting pay, review what others in the same classification and other similar positions receive.

USERRA Compliance

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a law that prohibits discrimination against service members. It also guarantees job return after service with additional time away for injured service members.

The USERRA escalation clause states that returning service members are entitled to any promotions and pay raises they would have received while away on service. This means job descriptions should be reviewed and updated upon their return to reflect any changes or promotions needed when the servicemember returns to work.

How to Craft a Compliant Job Description

Considering the legal issues discussed above, you can follow these steps to create a job description.

Categorize the Essential and Non-Essential Functions

Since the essential function list in the job description can be used for determining ADA accommodation and FMLA leave eligibility, it’s necessary to list the vital functions of the role and differentiate them from the non-essential functions. The job description should also be updated any time these substantially change.

Limit Language Regarding Attendance

It’s best to avoid including strong language about attendance policies in your job descriptions. Including statements such as “regular attendance is an essential function of this role” may cause compliance challenges.

The FMLA, ADA, and many state workers’ comp systems excuse some absences under their coverage. The Equal Employment Opportunity Commission has also assumed that working from home can often substitute for regular attendance. As such, it’s best to leave attendance off your essential functions list, as it will generally not hold up if challenged.

List a Salary Range If Required

Some states and cities have salary transparency laws that require employers to disclose the expected salary range for the role in the job posting. Check your state and local laws to understand whether you should include compensation information in the job description when you post an open role. Some states with pay transparency laws require employers to disclose salary ranges when asked or during the interview stage, while others like California and New York require that the expected pay be listed in the job listing.

Take Advantage of DOL Job Description Tools

If you’re unsure where to start writing a job description, take advantage of the Department of Labor’s job description tool. You select an occupation or job title and enter your state, then it will guide you through a step-by-step process of creating a relevant job description.

This tool provides a great starting point, but you’ll still need to review it for accuracy and add some additional details to create a well-rounded compliant job description. You’ll also need to determine the employment classification and add it to the job description. The tool will provide a generic list of common job duties for the role, but you’ll need to indicate which are essential functions and add any that may not be included in the standard list.

Decide Whether to Add a Catchall Statement

Many employers add a broader, catchall statement in their job descriptions. This often reads as “other duties as assigned” or something similar. It’s meant to cover as-needed duties that pop up throughout the course of employment.

Because it’s such a vague statement, courts generally don’t consider this catchall as an essential function of the job. Therefore, those added duties are usually considered non-essential and get ignored when determining a reasonable accommodation or approving FMLA leave. However, there is a recent federal court decision

However, there is a recent federal court decision that considers those other duties essential. The case involved a night receptionist at an assisted living facility whose other duties as assigned were helping during the center’s evening meal. The court ruled that the employer had proved that all-night receptionists were required to help with these meals and thus considered it essential.

Update the Job Description Regularly

Job descriptions are often created as part of a recruiting effort. However, job duties can change over time once someone is staffed in the role. Having an up-to-date job description is important if an ADA, FMLA, or FLSA issue arises where the essential functions listed in the job description will be used to decide. That’s why it’s a compliance best practice to review and update job descriptions for all employees at least once per year or anytime changes are made.