Crafting job descriptions with legal hazards in mind
May 21, 2013
Article courtesy of SBAM Approved Partner AdvanceHR
It may seem unnecessary to cover something as basic as a requirement to show up for work regularly, in a job description. Better not to make this assumption. Businesses can win, like the employer in the Samper v. Providence St. Vincent Medical Center (9th Circuit, No. 10-35811) case who ultimately beat back a claim filed under the Americans with Disabilities Act (ADA). This case asserted a disabled employee should be allowed to “opt out” of the employer’s attendance policy. Again, the employer won, but obviously avoiding litigation altogether would have been preferable.
ADA of course requires that disabled employees cannot be terminated if they are still able to perform “essential job functions” when provided “reasonable accommodation” by their employer. For example, Sampers argued — unsuccessfully — it would be a reasonable accommodation on the part of the employer to not hold the employee to the hospital’s attendance policy.
Essential Job Functions
Job descriptions don’t always use the phrase “essential job function.” But James J. McDonald, Jr., a partner with Fisher & Phillips, thinks using this phrase might not be a bad idea. He recommends this as a way to fortify the employers’ legal position in the event an employee later develops a disability affecting his or her ability to perform those essential functions. Eliminating any ambiguity about which job functions are truly essential is a good preventive measure.
Another recent case highlights the importance of a well-crafted job description. In Knudson v. Schwann’s Home Service, Inc., (8th Cir. No. 12-2240), the employer included in the job description an essential job function even though the employee rarely had to perform this task. This helped persuade judges to reject an ADA claim from the employee. The case involved a warehouse manager whose job description stated he must maintain a commercial driver’s license.
When the employee suffered an eye injury and was no longer eligible for this license, he was terminated. The employee asserted his job rarely actually required him to drive a truck. But the court held his particular experience in this job “is of no consequence in the essential functions job equation” and gave deference to its inclusion in his job description. (McDonald adds, other courts might have a different interpretation, but certainly omitting any occasional requirements from a job description would be a mistake.)
Keep Job Descriptions Current
Job descriptions are perishable, although employers often keep recycling the same ones. McDonald stresses the importance of keeping job descriptions current, so if new duties are added to the job, they are reflected in the job description. At a minimum, job descriptions should be reviewed each time a new employee is hired for the same position, instead of automatically recycling the existing one.
Judy Lindenberger, an HR consultant with the Lindenberger Group, LLC, says a good job description should be organized using these basic components:
- Job title
- Direct supervisor
- Overall responsibility
- Key areas of responsibility (i.e. the details, including essential job functions)
- “Consults with” (i.e. coworkers and others the employee will work with)
- Term of employment (if applicable)
- Qualifications (skills and experience)
She encourages employers not just to create the job description based on a job’s history, but to think of new aspects of the job which should be required in light of the company’s long-term objectives.
McDonald also emphasizes the importance of not overlooking the basics when describing the essential intangible aspects of the job (communication skills, etc.). Those include the ability to follow direction from your supervisor, work as a team, and so on.
Enumerated tasks in a job description should end with “other duties as assigned,” McDonald says.
Physical requirements included in a job description are not limited to positions involving manual labor. For example, Lindenberger suggests job descriptions for desk jobs should include the requirement for an employee to be able to sit at a desk all day.
Beware the Spectre of Discrimination
Lindenberger cautions job descriptions must not be written in a way which might be deemed discriminatory. For example, a job description which puts a ceiling on the number of years of experience required would make you ripe for an age discrimination claim, Lindenberger warns. The only gender-based requirement which might pass muster is for the job of a bathroom attendant, she adds.
Similarly, carefully think through the degrees and licenses you require, to ensure they have a direct bearing on the individual’s ability to perform the specific job.
Finally, when you’re done with the job description, take a fresh look at it and be sure the job you describe is “truly doable,” Lindenberger says.
Without a doubt crafting a complete job description can be a cumbersome task with an enormous amount of detail. But it pales in comparison to the task of defending a claim in court which could have been avoided. Think of it as helping your company dodge a legal bullet.