Defining the ‘Scope of Employment’

By Christi L. Swick, Counsel, Sandberg Phoenix & von Gontard | January 2, 2018

Utilizing Job Descriptions and Employer Policies to Determine Coverage for Employee Acts

Allow employment lawyers everywhere to let you in on a secret: we love to kill trees. The more documentation, the better, when it comes to defending clients in employment litigation. But even though managers are becoming more resourceful in conducting investigations into misconduct, they often find that the cornerstone of the company’s defense was never put in place – the accurate and reliable job description.

While not legally required, job descriptions that accurately define job qualifications, duties and physical requirements of the job are extremely important for compliance with federal and state labor and employment laws – particularly when an employee files suit under the Americans with Disabilities Act or state disability discrimination laws. Job descriptions also set out employer expectations for performance, which can then be utilized to conduct employee appraisals or evaluations that are useful in outlining non-discriminatory reasons for discipline and/or discharge decisions.

Take, for example, the employee who is on a seemingly perpetual medical leave of absence, only to return to work with multiple physical restrictions. The employer, unable to accommodate the restrictions, terminates the employee. The employee files a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that the employer has failed to make reasonable accommodations for him so that he could perform his job. The employer, in turn, claims that there was no accommodation that could have been reasonably made in order to allow the employee to perform a particular essential job function, knowing that employers are not required to waive “essential job functions” in order to render an employee “qualified.”

The problem? The employer has never articulated – until the employee files his Charge – what constitutes an “essential job function.” At this juncture, it is too late – any attempt by the employer to articulate “essential job functions” will be seen as a disingenuous and pretextual attempt to justify the decision to terminate the employee.

Effective job descriptions give managers guidelines to hire, promote, supervise, and discipline employees. They also assist an employer in its compliance obligations with numerous legal requirements for multiple state and federal employment statutes, such as the following:

  • The Fair Labor Standards Act (FLSA), which requires overtime pay for hours worked over 40 in a week by non-exempt employees. The exempt status of an employee is determined, in part, on an employee’s duties.
  • The Americans with Disabilities Act (ADA), which requires an employer to provide reasonable accommodations to the known physical or mental limitations of a qualified individual with a disability, unless to do so would impose an undue hardship on the employer. This duty to accommodate restrictions relates to the positions “essential job duties.” The disabled employee must be able to perform the essential functions of the job, with or without accommodation, and if he cannot, his employer is not required to employ that individual.
  • Federal and State Discrimination Laws (e.g. Title VII, Age Discrimination in Employment Act, state human rights statutes), which prohibit discrimination based upon a protected status.
  • The Family and Medical Leave Act (FMLA), which requires that the employee’s health care provider certify that the medical condition for which the employee is seeking leave renders the employee unable to perform one or more of the employee’s job functions. The FMLA further provides that an employer may require a fitness-for-duty certificate from the employee’s health care provider before the employee is able to return to work following FMLA leave.

While there is no litigation-proof formula for crafting an effective job description, there are certain elements which every job description should include. First, the job description should contain the title of the position. Key terms, such as “lead” or “supervisor” should be included in the title if the position entails supervisory or managerial tasks.

Second, the job description should note the Fair Labor Standards Act (FLSA) classification for the position, meaning, exempt or non-exempt. This is especially important for defense of FLSA suits brought by employees for unpaid overtime compensation. While not determinative, the employer’s designation of a position as exempt does evidence the employer’s intention to assign the employee to exempt duties, to pay them on a salary basis and to pay them the minimum threshold salary. The employer who classifies a position as exempt should ensure that it also includes exempt job duties within the job description. In a Department of Labor audit for FLSA compliance, job descriptions are typically one of the items the investigator requests to inspect and verify.

Third, the job description should indicate to whom the position reports – the first step in the chain-of-command for the employee. This supervisor should be the individual who participates in the interview process, who conducts the employee’s appraisals, who investigates allegations of the employee’s misconduct and/or poor performance, and who assists with employee counseling and discipline. Importantly, this individual is also an integral teammate in the preparation of the job description itself, as he or she has a firm finger on the pulse of the needs and requirements of the position.

Fourth, the job description should include any required experience, education or certifications for the position. This element also bears on the ability to classify a position as exempt under the FLSA, as noted above.

Fifth, the job description should indicate tasks and responsibilities of the position. This section of the job description should be as thorough as possible, but notably, should end with the requirement of “other duties as assigned.” This statement allows the employer to add to the duties, provided the ad-hoc duties do not require education or training not required by the employee upon initial hire. The added duties generally may include those that do not result in material changes to the employee’s responsibilities.

Sixth, and of pivotal importance in defending against allegations of disability discrimination and in determining whether the employee on workers’ compensation is able to return to work, is the inclusion of the physical requirements of the position. This should include not just that the employee should be able to perform physical tasks such as stooping, climbing stairs, or lifting objects, but should be as specific as possible, erring on the side of the maximum effort required. For example, rather than stating that the job “requires lifting of objects,” the job description should state, “requires lifting up to 50 pounds and carrying such weight up a flight of stairs, up to five times per day.” The job description must include, at a bare minimum what the employer considers to be “essential” job functions – functions and responsibilities so integral to the position that they cannot be diluted or waived. The EEOC guidance provides in determining whether a job function is “essential” the employer must ascertain:

  • Whether the reason the position exists is to perform that function;
  • How many other employees are available to perform the function or whether the performance of the function can be distributed, and
  • The degree of expertise or skill required to perform the function.

Evidence that a particular function is essential includes the written job description, the amount of time spent on performing the function, the work experience of present or past employees in the job, the employer’s management discretion or judgment, and the consequences of not requiring that an employee perform the function. In describing these essential functions, the employer should avoid describing the method for performing a task – for example, if the essential function entails moving an object from Point A to Point B, specifying that the employee must be able to “walk” the object from Point A to Point B is not only an unnecessary distinction, but could also act to exclude otherwise capable and qualified wheelchair bound employees.

Finally, in at-will employment states, the job description should include a statement that the job description does not constitute a contract of employment and that the company may exercise its employment-at-will rights at any time. To that end, while a copy of the job description should be available to the applicant prior to hire, and provided to the employee during orientation, it should not be signed by the employee. Employers that have employees sign their job description do so in an attempt to evidence that the employee promised to perform the tasks; however, it is not only unnecessary, it can actually be used by the employee in an attempt to convert the job description into a contract of employment. For this reason, employers are also advised not to include salary or hourly wage information in the job description, or to indicate that the position is for any specified period of time.

Having job descriptions with these elements – prior to hiring the employee, preferably – put the employer ahead of the game in the event it gets sued by a disgruntled employee. Once drafted, the job description should be utilized to outline the parameters of the employee’s evaluation instrument, in order to determine that the employee is appropriately performing the tasks required of the position. Finally, it is important to regularly review and revise the job description as the needs of the position changes. Doing this allows the employer to have concrete evidence of the employee’s expectations in the event of a suit alleging retaliation, discrimination or wage law violation.

Christi Swick, counsel with Sandberg Phoenix & von Gontard, PC, has 15 years of experience in a broad range of labor issues, having litigated labor and employment matters in state and federal courts, arbitration proceedings and unfair labor practice charges. She has extensive experience in counseling clients in labor and employment issues, focusing on preventing disputes by drafting effective policies, job descriptions and evaluations and frequently delivers presentations on mitigating litigation risks to her clients. Swick has extensive knowledge of disability-related employment issues such as ADA, FMLA and workers’ compensation, as well as wage and hour law.

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