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How a well-written job description protects employers

| Oct 10, 2017 | Employment Litigation |

Whether you’re replacing a former employee, creating a new position or welcoming an employee back from a medical leave, writing a job description is an important part of the hiring process. Even if you are in a rush to fill a position, it is worth taking the time to make sure the job description is clear, accurate and comprehensive.

A well-crafted job description does more than help an employer attract good applicants. It can also help you:

  • Protect your company against allegations of employment discrimination
  • Determine whether a position qualifies for exempt status, preventing wage-and-hour problems in the future
  • Assess accommodations that could enable a person with a disability to perform the job
  • Communicate expectations to new employees

Avoiding discriminatory hiring practices

California’s Fair Employment and Housing Act protects job applicants against discrimination based on race, religion, age, disability, sex, sexual orientation, gender identity, pregnancy, marital status, veteran status and other protected characteristics. Many companies choose to explicitly state that they are equal opportunity employers in job postings, but there are other things you can do as well.

When writing the job description, consider what skills, education and abilities are actually necessary for performing the job. Make sure the “essential functions” of the job description do not appear to require any education or ability that isn’t essential for performing the job. Job descriptions can include both “essential functions” of the position as well as “non-essential functions,” as long as the two are clearly delineated.

Remember that non-essential functions can help you to determine who your most ideal candidate might be in a job search, but when you are determining potential accommodations, you should only ensure that the employee can perform the essential functions, with or without accommodations. Practically speaking, then, any non-essential functions are “nice to haves” but are not “must-haves.” An experienced employment attorney can guide you through determining how to navigate these nuances. You should have clear, objective qualifications to guide your hiring decisions and, if necessary, the interactive process with employees who become disabled.

Considerations for exempt positions

If you are hiring for a position that you think qualifies for an exemption from the overtime and minimum wage requirements of the federal Fair Labor Standards Act and California overtime laws, make sure the job description includes the aspects of the position that would qualify it for the specific exemption. For example, if you think an executive exemption applies, the job description should specify that the position supervises at least two people; for a professional exemption, it should be clear that the position requires advanced knowledge and education in a recognized profession. In addition, the job description should line up with what your actual practices are. This is important for maintaining applicable exemptions.

Consider consulting an attorney

Legal counsel early in the hiring process can help prevent litigation later on. In particular, smaller businesses without human resources departments may want to consult an employment attorney when developing job descriptions.