Each year, droves of employers are hauled into court to defend lawsuits in which salaried-exempt employees claim that, because of their job duties, they should have been classified as non-exempt and paid overtime.
While a written job description alone cannot defeat such a claim, it will nearly always be one of the primary exhibits in the case.
In this post, we offer a few tips for ensuring that this likely is helpful rather than harmful:
1. Accuracy is King. The job description must be accurate. If the job description paints an inaccurately dim a view of a job’s role, the worker-turned-plaintiff will cite it in support of her claim that her duties did not justify exempt status. If, on the other hand, the description over inflates a job, the plaintiff’s attorney may use it to suggest the employer did not understand the job that it chose to classify as exempt.
2. Accuracy Does Not Mean Exhaustion. Focus on why the job exists. The job description need not list every last task an employee might perform. Even a CEO might, on occasion, file a document or open mail, but saying so in a CEO job description needlessly distracts from the job’s core function. Likewise, there is seldom reason to list tasks that can be assumed of any job, such as “execute tasks assigned by supervisor.” Including unimportant minutiae in an exempt job description, in particular, can create fodder for a misclassification claim.
3. Strong Verbs, Clear Impact. Use strong action verbs. and focus on value and impact, to describe a job’s essential duties.Though it might not be wrong to state that a manager “views! P&L reports monthly,” this is a weakly worded description that fails to relay any value in the manager’s role. If it is no less accurate, then it would be far better to write: “Analyzes monthly P&L reports to identify growth opportunities and plan or adjust related strategies.”
4. Focus on Exempt Functions. In describing an exempt job’s primary functions, highlight the duties that justify its exempt classification. (Those duties are set out in the white-collar exemption regulations.) For example, if a job’s core duties involve implementing management policies, carrying out major projects, negotiating on behalf of the company, and planning business objectives, it is critical to ensure that the description conveys these points. Relatedly, if a managerial role has authority in making or contributing to hiring, firing, disciplinary, or termination decisions, the job description should state that—these duties go directly to the duties requirements of the FLSA’s executive exemption.
5. Don’t Shy Away From Degree Requirements. Oftentimes we see job descriptions for professional jobs (e.g., accounting, engineering, various sciences) which state that a bachelor’s or master’s in a given area is a preferred qualification, only to find out that every incumbent in the role holds the degree. Certainly there can be a business case for writing job qualifications in a way that attracts, and does not weed out, the desired candidate. That said, if the reality is that virtually no candidate would be considered without possessing a specific degree, then saying so makes sense and can help support a defense under the professional exemption.
6. “Assist With” Can Diminish a Role. You can inadvertently diminish an exempt employee’s role in performing a given duty by suggesting that she cannot perform the duty on her own. As an example, an engineering firm might describe one of a junior engineer’s core duties as, “Draft or assist in drafting blueprints for commercial buildings.” We much prefer: “Draft blueprints for commercial buildings.” The latter statement is more direct, it very likely remains accurate, and it avoids diluting the function the employer is trying to describe.
7. Consider Requiring Acknowledgement. When employers require employees to periodically review and sign their job description to acknowledge its accuracy, the description can become an even more powerful piece of evidence in the event of litigation. The process can also provide a terrific way to foster an open dialogue that allows employees to communicate if any core aspects of their jobs have changed. While a job description is not dispositive of an employee’s exempt status, it can be a very helpful (or harmful) exhibit in the event of a legal challenge. Above all else, job descriptions must paint a clear, accurate picture of a given role’s key purpose and function. Given the proliferation of FLSA litigation, employers should also take care to ensure that job descriptions for exempt jobs help to support (rather than undercut) the reasons they chose to classify the jobs as such.