This is part II of our blog on the importance of written job descriptions in employment.
In Part I, we discussed the importance of job descriptions to address the potential issues relating to:
- The Practical Benefits of Written Job Descriptions
- Clarity of Job Duties and Responsibilities
- Recruiting and Hiring
- Setting and Reviewing Compensation
- Managing Performance
- Legal Implications of Written Job Descriptions
- Essential Functions of the Job and Accommodation Issues
In this part we discuss more legal issues that are impacted by effective job descriptions.
Bona Fide Occupational Qualification and Discrimination Issues
Discrimination issues arise under Title VII of the Civil Rights Act of 1964 (Title VII) where a job description states a preference or requirement based on a protected class. Job requirements based on religion, sex, national origin or age can be used in extremely limited circumstances where the employer can demonstrate that the characteristic is a bona fide occupational qualification (BFOQ) that is “reasonably necessary to the normal operation” of the business (42 U.S.C. § 2000e-2(e)(1); 29 U.S.C. § 623(f)(1)).
In one example where sex was found to be a BFOQ, the Ninth Circuit held in Teamsters Local 117 v. Washington Department of Corrections that the employer did not violate Title VII by designating a small number of its prison guard jobs as female-only positions. Affirming summary judgment for the employer, the court found that the employer factually demonstrated the need for female guards in positions requiring close contact with female inmates to minimize problems of sexual abuse by male prison guards against female inmates. (2015 WL 3634711 (9th Cir. June 12, 2015).)
Employers should be extremely careful about stating a preference for a protected characteristic in a job description or job posting as a BFOQ defense rarely applies, except in extremely narrow circumstances. For example, a customer, client or co-worker preference does not constitute a BFOQ (see 29 C.F.R. § 1604.2(a)(1)(iii); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981); Kern v. Dynalectron Corp., 577 F. Supp. 1196, 1201 (N.D. Tex. 1983)).
Wage and Hour
Written job descriptions become an important piece of evidence in wage and hour litigation involving claims that employees were misclassified as exempt and not paid overtime. While job descriptions by themselves cannot prove that an employee was properly classified as exempt, an accurate list of duties helps establish that the employee’s job duties qualify that employee under one of the exemptions provided by the Fair Labor Standards Act (FLSA). Therefore, in addition to meeting the salary basis tests for an exemption under the FLSA, the written job description of exempt positions should reflect that it meets the “primary duties” test under the FLSA. For example, if a position is classified as exempt under the administrative exemption, the job description should reflect that the position requires that the employee both:
- Perform office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers.
- Exercise discretion and independent judgment regarding matters of significance.
Job descriptions are also relevant when handling employee medical leave issues. For example, under the Family and Medical Leave Act of 1993 (FMLA), when an employer wants an employee returning from FMLA leave to provide a fitness-for-duty certification, a statement to that effect must be included in the designation notice (unless the employer’s handbook clearly requires a fitness-for-duty certification). An employer or third-party administrator must also provide a list of the employee’s essential job functions, which the employee provides to the physician responsible for completing the fitness-for-duty certification (see 29 C.F.R. § 825.300(d)(1)-(6)).
In this context, a job description that contains all the essential functions of a job can be provided with the FMLA designation notice in the event the employer desires a fitness-for-duty certification on an employee’s return from FMLA leave. This provides an accurate description of the job’s duties for the certifying physician. It also avoids the necessity of generating a list of duties for each fitness-for-duty certification request, which then avoids potential inconsistencies in how the same position is described at various times.
Drafting and Maintaining Job Descriptions: Best Practices
Job descriptions should be well-written, accurate and current. The human resources department typically maintains these documents. However, human resources may involve in-house counsel or outside counsel as necessary to help draft or review job descriptions, especially if an employer has previously been involved in litigation that involved poorly written, inaccurate or out of date job descriptions.
In drafting or reviewing written job descriptions, employers should:
- Analyze the job. Gather information about the exact duties and responsibilities being performed by employees. This can be accomplished by:
- observing employees as they perform their jobs;
- interviewing the employees or employees’ supervisor; or
- referencing outside sources, such as the Occupational Outlook Handbook (see U.S. Bureau of Labor Statistics: Occupational Outlook Handbook).
- Describe the job, including essential functions. Describe accurately the job’s:
- qualifications; and
- Include pertinent details. Ensure the job description includes relevant details about the position, such as:
- job title;
- whether the position is exempt or nonexempt;
- whether the job requires travel, and if so, how much;
- physical demands of the job;
- whether the job requires physical presence in the office or allows telecommuting;
- working environment, for example, if it is an office or warehouse setting; and
- date when the job description was drafted or last revised.
- Include a disclaimer. Consider adding a disclaimer in the job description that:
- the duties and responsibilities described are not a comprehensive list and that additional tasks may be assigned to the employee from time to time, or
- the scope of the job may change as necessitated by business demands.
- Consider any collective bargaining agreements. Review whether the employer has a collective bargaining agreement (CBA) that may apply to any of the jobs being analyzed to ensure the job descriptions are consistent with how the jobs are identified or described in the CBA. Any changes to the scope of job duties typically require the approval of the union.
- Have the job description reviewed by the employee in the position and the employee’s supervisor. The draft job description should be reviewed by the employee performing the job to confirm or clarify any duties and responsibilities. The employee’s supervisor should also review the draft to ensure it contains an accurate statement of the position’s duties, responsibilities, qualifications and skills.
- Conduct periodic reviews. Written job descriptions should be reviewed on a regular basis, typically at least annually to ensure they continue to accurately describe the actual jobs as they are being performed.
- Update the job description as needed. Some changes to a job are so significant that the job description should be updated before the annual review time. If the scope of a job changes, any duties or responsibilities that are no longer applicable should be removed and updated as the change occurs.
The attorneys at Rosenthal Law Group are available to offer assistance to employers to review and prepare effective job descriptions and to assist in all matters relating to employment litigation.