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Drafting Legally Sound Job Descriptions

September 30, 2019

Overview

Job descriptions are a crucial part of recruitment and hiring, and of performing an Equal Pay Act Analysis, classifying employees for purposes of the Fair Labor Standards Act, and developing reasonable accommodations under the Americans with Disabilities Act and its state counterparts. The job description is an important tool to understanding the essential functions of a position, including the knowledge, skills, abilities, environmental, physical, and travel requirements. A good job description will include the job title, grade or level (which may include a salary structure), the department, location, job summary, supervisory expectations, essential job functions, minimal qualifications, and physical and environmental demands.

In this post, you will learn eight steps to drafting a job description.

1. Start with a descriptive job title and introduction.

As a tool for recruitment and hiring, the job description should suit the type of applicant that you are seeking. A job description for an executive level or a creative role will be different from a job description for a production worker. The job title therefore should be indicative of the position and its rank, and should be free of slang or jargon.

Include an introductory section in your job description that describes your company and the role it plays in the larger industry. Include a description of your job culture, including any benefits, perquisites, or other aspects about your workplace that set you apart. Draft your job description to be as inclusive as possible, and pay close attention to gender biases in your description.

2. Perform a job analysis.

Whether you are creating a new job description or revising an existing document, one of the first steps is to perform a job analysis. A job analysis gathers facts about a position and breaks a job down into pieces to determine all of the various aspects. A good analysis will begin by examining the purpose of the job. For example, for a person working on a shipping line, the purpose of the job may be to pack products into boxes for shipment. In order to create a job description for this position, you will want to create questionnaires or other data collection tools. Then either interview the employee who performs the position or have them complete the questionnaire. If you choose to interview, use your questionnaire to guide you in the interview process. Have the employee explain the functions and responsibilities of their job. Ask them how they perform these functions. Following the same example, what does the shipping department employee do to pack the boxes? What tools, materials, and equipment do they use to perform the job tasks? What methods or processes do they use? What kind of lifting and other physical requirements are necessary to lift and maneuver items? After they have packed the box, what is the next process? Perhaps that is to tape the box up. What types of equipment do they use to perform this task? What kind of physical requirements are involved in that job duty? Ask these questions as you break the job down into discrete functions. If you have more than one employee performing the same job, question multiple employees. Interview the supervisors and managers as well to determine whether they have any content to add.

3. Determine which job functions are “essential.”

After you have determined the job tasks or functions, determine which functions are “essential” to the job, and which are “marginal.” Essential job functions are those basic components of the job that are necessary to get the job done. The Equal Employment Opportunity Commission (“EEOC”) provides the following factors to consider in determining if a function is essential: (1) whether the reason the position exists is to perform that function; (2) the number of other employees available to perform the function or among whom the performance of the function can be distributed; (3) the degree of expertise or skill required to perform the function; (4) the time spent performing the function; and (5) the consequences of not requiring an employee to perform the function. For the shipping department employee, an essential job function is to hold, handle, and maneuver product for packing into boxes. There is no real way to perform the position if you cannot perform that function. On the other hand, the ability to stand may or may not be an essential function, depending on the setup of the shipping floor. If an employee performs one particular function, and then passes the box down to another employee to continue the packing, then it may be possible to sit on a high stool rather than standing to perform that function. In this example, standing would be a “marginal” job function. A “marginal” job function is one that you can take away without affecting performance of the position.

4. Determine whether the job has different levels.

Once you have questioned employees about their jobs, then determine whether all employees are performing at the same level, or whether some employees are performing at a more difficult level that requires more advanced education or job experience. This step may tell you that the job has different levels, for example, beginning, intermediate, and advanced. Having a position with different levels and a scaled up hourly rate will allow your employees to have upward mobility.

5. Consider positions of comparable character.

Oregon and Washington, in addition to a growing number of other states, recently passed Equal Pay Acts. Oregon’s Equal Pay Act requires employers to pay employees equal pay for work of a “comparable character.” As you draft your job descriptions, consider which jobs in your organization are of a comparable character so that you can easily perform your equal pay analysis. The Oregon administrative rules (OAR 839-008-0010) define work of a comparable character as including “substantially similar knowledge, skill, effort, responsibility and working conditions.”

6. Determine the physical and environmental demands for the job.

Your job description should list the physical and environmental demands required to perform a position. A physical demands analysis will describe the force, frequency, and duration of physical tasks that are required to perform a position, including sitting, bending, reaching, stooping, overhead lifting, and climbing. A qualified ergonomic specialist normally conducts these analyses. Your workers’ compensation carrier may be able to help with the physical demand analysis. Also, include whether the job involves working in extreme heat, or cold temperatures, or whether it is primarily inside or outside.

7. Include key descriptors for the administrative FLSA exemption.

If the job description is for a position that you plan to classify as exempt under the administrative exemption, be sure to include key phrases in your description of the position to establish that exemption. Ultimately, the issue of whether an employee is properly classified will depend on the employee’s actual job duties, but a job description is a key piece of evidence. In addition to the salary requirement for the position, the administrative exemption requires that employees have a primary duty that includes the performance of office or non-manual work that is directly related to management or general business operations. The primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.

The FLSA regulations provide a set of ten factors that assist in establishing that a position involves the exercise of independent judgment with respect to matters of significance. Generally, employees who meet at least two or three of these ten factors exercise discretion and independent judgment. These include whether the employee:

  • Has authority to formulate, affect, interpret, or implement management policies or operating practices;
  • Carries out major assignments in conducting business operations;
  • Performs work that affects business operations to a substantial degree, even if the assignments are related to the operation of a segment of the business;
  • Has authority to commit the employers in matters that have a significant financial impact;
  • Has authority to negotiate and bind the company on significant matters;
  • Provides consultation or expert advice to management;
  • Is involved in planning long- or short-term business objectives;
  • Investigates and resolves matters of significance on behalf of management; and
  • Represents the company in handling complaints, arbitrating disputes or resolving grievances.

Incorporating several of these factors into the duties section of your job description will assist you in classification disputes, assuming, of course, that the employee actually does have the stated authority.

8. Have the employee review and sign the job description.

After you draft your job description, ask employees to review and sign the descriptions. Keep the descriptions a vital part of your review process by having your employees review their job descriptions at least yearly to ensure that the description incorporates any changes to the position.

Job descriptions are important legal and job recruitment documents that are usually drafted and forgotten. This article includes important considerations in making sure that your descriptions stay a vibrant and legally sound business tool.

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