Seyfarth Synopsis: 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 Exhibit A is helpful rather than harmful:
- Accuracy is King. The job description must be accurate. If the job description paints an inaccurately dim a view of a role, the worker-turned-plaintiff will cite it in support of her claim that her duties did not justify exempt status. Conversely, if the description overinflates 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.
- Accuracy Does Not Mean Exhaustion. Focus on what the job exists to do. 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." It is not necessary to list every last task an exempt employee might perform, and doing so can backfire by providing fodder for a plaintiff bringing a misclassification claim.
- 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 "view 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: "Analyze monthly P&L reports to identify growth opportunities and plan or adjust related strategies."
- Focus on Exempt Functions. Highlight the duties that justify a job's exempt classification. (Those duties are set out in the FLSA's white-collar exemption regulations.) For example, if a job's core duties involve executing major projects and negotiating on the company's behalf, the description should prominently convey this. Likewise, if a managerial role has authority in hiring, firing, disciplinary, or termination decisions—all of which go directly to the executive exemption's requirements—the description should highlight this.
- Don't Shy Away From Degree Requirements. Sometimes 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 preferred, 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 of the job requires a specific degree, then saying so makes sense and can help support a defense under the professional exemption.
- "Assist With" Can Diminish a Role. You can diminish an exempt employee's role by suggesting that she cannot perform a given duty on her own. As an example, an architecture firm where numerous architects touch a blueprint might describe one of a mid-level architect's core duties as: "Draft or assist in drafting blueprints for commercial buildings." We prefer: "Draft blueprints for commercial buildings." The latter statement is more direct, it likely remains accurate, and it avoids diluting the function the employer is trying to describe.
- 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 whether 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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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