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Who Reads the Instructions Anyway? The Role of Job Descriptions in Limiting Liability - June 21, 2017

Jo Ellen Whitney

Photo of a job description. last update date: 06/30/1996How many times have you heard employment counsel say, "update your job descriptions?" Enough that you dream of updates? Enough that one of my clients commented, "I feel like that's tattooed on my brain." Enough that you have actually done it?  No?  I thought so.

Job descriptions matter

Why do employment attorneys care so much about job descriptions? Because they are a basic way to limit liability. In fact, job descriptions can be the core of complex compliance questions and defenses for Wage Hour, ADA/ADAAA, OSHA, and Workers' Compensation issues.

Wage Hour

For wage hour purposes, the job description can provide critical proof relating to exempt classifications. If the job description reads primarily like hourly work, with little emphasis on "discretion and independent judgment," it is much less likely the DOL will accept your assertion of exempt status.  This is particularly true if the employee's description of what he does on a daily basis differs significantly from yours, and they almost always do. Further, you can use the job description to align employer and employee expectations. Noting that variable times and hours may be required helps avoid that conflict later on.

Disability accommodations

For the ADA/ADAAA and work comp there are similar purposes for a job description.  Just what exactly is your job?  Is it the stuff you like to do, the stuff you prefer to do, or the stuff your employer described when you accepted the job?

For disability accommodation purposes, it is important to note those functions that are essential or frequent so that you can highlight core job responsibilities. Secondary functions are also important but don't let them be confused with essential functions or you may face an uphill legal battle over accommodation or job classification. This can also be critical in assessing the exempt/non-exempt classification. Is managing, an exempt activity, primary or secondary in the description?

Physical requirements

For physically intensive jobs, such as nursing or manufacturing, having a current, accurate assessment of the physical portion of the job is key, but make sure such requirements are accurate. An employer can quickly lose credibility if the job "requires 50 lb lifting capacity" but nothing over 20 lbs is ever lifted. Or if the employer is the CEO and her job description includes frequent lifting - most CEOs don't routinely lift 50-100 lbs as part of the job.  For physical requirements, one size does not fit all.

Safety requirements

For OSHA, job descriptions can provide a key to areas where safety equipment or training is needed. All job descriptions should require the employee to be familiar with the position's safety requirements and reiterate the obligation that employees have to comply with key policies, such as reporting safety violations. 

Other job description considerations

Do you have special hazards?  What about exposure to inappropriate language? This is important if your employees treat dementia patients who have few filters on what they say. Do you perform your job during extreme weather? Put it in the description. Listing issues is not a substitute for training and equipment, but it is harder for an employee to claim a work condition was unknown if it's listed in the job description from the beginning.

Job descriptions can quickly become out of date in a fluid work environment. Regularly check in with employees and direct supervisors regarding assignments as well as expectations, and adjust descriptions accordingly. These reviews also have the benefit of helping determine where you may be over staffed, if certain functions are obsolete, or if jobs are incorrectly classified.  Job descriptions can be a key planning tool. 


Next steps

Update your job descriptions.