Many people think of job descriptions as an important hiring and employee management tool, but they are also highly valuable to companies that become engaged in employment litigation. That is because a fundamental question in many of these disputes is, “What did the employee do?”
For companies facing discrimination claims in hiring and promotion practices, the duties that the company felt a potential or current employee could not fulfill are a key issue. A job’s essential functions are typically at the root of many lawsuits involving the Americans with Disabilities Act (ADA).
While not determinative, a job description is also useful in establishing responsibilities or duties when fighting lawsuits dealing with misclassification under the Fair Labor Standards Act (FLSA). If an employer terminates an employee for failure to properly execute his or her duties, it is important to have documentation that establishes the employee’s responsibility for those duties when it comes to unlawful discrimination or retaliation claims.
This also applies to employees who are not at-will and can only be dismissed for cause. By showing that an employee cannot (or has not) performed an essential job function as outlined in the job description, an employer can prove just cause for the termination of employment.
Given the importance of job descriptions in potential employment litigation, employers need to draft them carefully and update them at least once a year. The key elements that should be included in a job description are:
Job title and summary. The job title and a broad overview of the essential job functions.
Minimum required qualifications. The attributes an individual needs to qualify for the job — i.e., basic knowledge, skills, abilities, educational requirements, experience, training, certifications, physical abilities, etc.
Essential job functions. List only job functions that are truly essential for the position and be as specific and detailed as possible. Also include any expected behaviors — i.e., travel as required, adherence to all company policies and procedures, etc.
Additional responsibilities. These are job functions that are part of the job, but not necessarily essential.
Exempt vs. non-exempt classification. Indicate whether the job position is exempt or non-exempt from overtime per federal and state wage and hour laws.
Disclaimer. To protect an employer’s legal rights, this section should be a “catch-all” statement that makes it clear the employee may be required to perform additional functions not outlined in the current job description. You also need to reserve the right to revise the job description as needed.
Finally, the job description needs to be reviewed and signed off on by the employee so it is clear he or she understands all the elements.
Employment law can be complex. Skilled representation is necessary. Williams Commercial Law Group, L.L.P., is a law firm with decades of experience in commercial litigation, including employee lawsuits, IP infringement, business divorce, aviation, and high stakes litigation. Contact us at (602) 256-9400 and schedule a time to meet with us today.