This month’s experts are
Doug Dexter, partner, and Diego Acevedo, associate, with the law firm of
Farella, Braun + Martel, LLP, in San Francisco.
Job descriptions have
traditionally been used to educate applicants about their expected job duties
and the position’s organizational purpose, but they gained a new importance
after Congress passed the federal Americans with Disabilities Act in 1990.
Since then, job descriptions have been reexamined to clarify the physical
requirements of performing a job’s “essential functions.” Now, with the wave of
wage and hour litigation concerning overtime exemption, the time is right to
revisit job descriptions with an eye toward explaining the type, discretion,
and importance of decisions an employee can make. Thoughtfully prepared, accurate,
and regularly updated descriptions can be critical to defending yourself
against exemption misclassification claims.
In determining whether
an employee falls within an overtime exemption,
realistic requirements, and the best evidence of this may be a well-crafted job
description. Unlike other evidence acquired in litigation, a job description
sets out at the time of hiring the employer’s unbiased expectations of exactly
what the position entails. Thus, a description demonstrating that the employer
expected the employee to engage in exempt duties will go a long way toward
defeating the employee’s assertion that he or she was nonexempt. (Of course, a
job description specifying that a job is exempt won’t be of use if the employee
isn’t truly performing exempt work.)
Drafting Job
Descriptions
When drafting a
description for an exempt position, an employer should consider a basic set of
factors. First, the employer must decide under which exemption the position
fits, as this can affect the description’s language and emphasis. Tailoring a
position to a particular exemption is important because an employee will be
exempt only if he or she spends the majority of the time involved in duties
qualifying under that exemption. When a job description includes duties qualifying
under multiple exemptions, an employee may end up being nonexempt if the exempt
duties don’t constitute more than 50 percent of the employee’s total work
functions.
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Second, the description
should explain the nature, discretion, and import of the decisions the employee
will be expected to make. The foundation for most exemptions is the exercise of
independent discretion and judgment concerning matters of importance to the employer.
Therefore, tasks should be described in terms of the decisions to be made when
executing those tasks.
Third, employers hiring
a person for a position that consists of exempt and nonexempt tasks should
ensure that the exempt tasks are of primary importance in the job description.
Also, during the employee’s annual performance evaluation, the employer should
review the job description to ensure that the employee is continuing to engage
primarily in exempt activities.
Fourth, the job
description should contain specific and accurate details regarding the position’s
major functions. If an employee brings a misclassification claim, a detailed
description will serve as credible evidence of the employer’s realistic
expectations for the job. In contrast, broad descriptions may give employers the
short-term benefit of allowing them to subtly shift job responsibilities
without having to constantly update the document—but broad descriptions could
be detrimental to an employer if an employee challenges his or her exempt
status.
Consider, for example,
an executive assistant hired to aid the president of a small company. One of
the executive assistant’s duties might be to help the president prepare for
meetings with investors and high-level executives. A line item on the job
description might state: “Assist president with meeting preparation.” Although
this is technically accurate, it does not convey the task’s complexity. Is the
executive assistant helping the president gather and analyze information, or is
he or she just performing nonexempt duties such as copying documents or
assisting with scheduling? A better statement of the task might be: “Assist
president in preparing for high-level meetings by compiling and synthesizing
information independently gathered for president’s use at meetings.” This
conveys to the employee exactly what he or she is expected to do and serves as
strong evidence that the employee uses discretion or performs high-level tasks
requiring independent judgment and skill.
Is the executive assistant helping the president gather and analyze information, or is he or she just performing nonexempt duties such as copying documents or assisting with scheduling?
Finally, the employer
should list the position’s educational, professional, or experience
prerequisites. These details not only inform potential candidates of the
requirements but also document the level of judgment and discretion expected to
be exercised in the position. Moreover, educational and licensing prerequisites
are often required to invoke the professional exemption. Employers should
beware that listing prerequisites as “preferred” as opposed to “required” can undermine
the exempt classification of the position.
The Bottom Line
A thorough and regularly
updated job description will go a long way in helping an employer defend itself
against wage and hour claims. It can have other benefits as well. For example,
the job description can be a baseline for measuring the employee’s performance,
allowing the employer to justify promotions, demotions, and general
evaluations. A good description can also help the employee understand his or
her company role by providing a clear sense of his or her purpose and the
likely scope, size, and complexity of assignments the employee can expect to
receive.
Regularly updating job descriptions may seem to be an onerous and
thankless task but, for many companies— especially small ones experiencing
rapid growth—a well-written job description that reflects the employee’s actual
job functions will be integral to the company’s legal and general success.