Did the Recession Make Your Job Descriptions “Lawyer Bait”?

By BLR Founder and CEO Bob Brady

During the recent recession, many employees saw their jobs change and grow. There may be fewer bodies, but the work still has to get done. In a lot of cases this, means that job descriptions are out of date and inaccurate. They may be fodder for significant lawsuits if, for example, an employee is classified as exempt, but is now doing some non-exempt work, according to Attorney Sandra Rappaport.

“In this age of downsizing and job consolidation, even your best, most complete job descriptions have likely become outdated,” she said, “and outdated job descriptions are a plaintiff’s lawyer’s best friend.”

‘Exempt’ Employees Who Aren’t

Rappaport said that if you’re using an old job description that suggests exempt status, but your employee is performing non-exempt duties, you’ve got the makings of a costly lawsuit on your hands. “Wage-and-hour class action lawsuits are in vogue now,” she said, “and many are based on misclassification issues.”

Important laws are changing left and right, and increasingly disgruntled employees mean an increasing number of lawsuits. Steer clear of these issues with the practical, plain-English advice you’ll get at BLR’s National Employment Law Update conference. Sign Up Now

Rappaport, a partner at the San Francisco office of law firm Hanson Bridgett, LLP, notes that many employers don’t realize that it’s what an employee does that matters, not the person’s job title: “Someone called a ‘manager’ may not be an exempt employee,” she said. “Exempt workers who perform too many nonexempt duties may not be exempt.”

Rappaport explained that even if you have a job description that was once accurate, employers around the country are doing more with less these days. In many cases, that means that once-exempt workers are spending more time on non-exempt duties. When the balance tips too far in that direction, you’re required to pay overtime. You could even be on the hook for years of back overtime, depending on how long the misclassification has gone on. “Relying on an old job description and thinking you’re safe is a sure path to disaster,” she said.

Submit Your Own Job Descriptions for Review

Rappaport and her colleague Mike Moye, a fellow partner at Hanson Bridgett, regularly counsel employers on exemption issues and are frequent speakers at industry events. They will be presenting a unique job descriptions workshop at BLR’s National Employment Law Update conference Oct. 19-21, at the Venetian in Las Vegas.

The workshop will cover:

  • Elements that should be included in every job description
  • The steps you should take when you create new job descriptions from scratch
  • Red flags that could cost you big in a lawsuit
  • Why your current job descriptions may not match the way you’re treating employees in terms of overtime pay and benefits—and why you need to fix this, immediately
  • How to evaluate whether a given job description tends to indicate exempt or nonexempt status

Plus, you’ll have the opportunity to submit your own job descriptions for exempt/nonexempt review by Rappaport and Moye before the session. We can’t guarantee they’ll be able to cover every submission individually, but they will review the most common questions and concerns, and provide tips for making your job descriptions as lawsuit-resistant as possible.

Now’s the time to arm yourself with the tools you need to succeed. Sign up now for BLR’s National Employment Law Update conference and you’ll save $100 off the regular rate.

Job descriptions—one area where getting it wrong could cost you big, and it’s important to have your house in order. By the way, said Rappaport, “Even correctly classified exempt employees can become entitled to overtime if you dock their pay for disciplinary reasons, or for partial-day absences. That’s especially important to think about if you’re talking about furloughs.”

For more information, or to register, click here. Space is limited, so don’t delay. Plus, sign up by Aug. 31 and receive $100 off your registration.

  • Anonymous

    I was hired as an Office Manager, in less then 6 months I was giving the task of written an RFP because the contracting and proposal department was scrapped and stretched.  When I refused to write the RFP because it was not my duty and I was not familiar with the format I was told I needed to understand the liquid of the walls of the company.  I believe this too is a problem.  Employers need to write the PDs out and tell in interviews the real duties and expectations of the position.  But asking or demanding one employee do another job because the company refuse to hire enough of the right people to the required work is asking for trouble.  Especially if you are not compensating the lower level for doing the higher level work.