The Job Description has been a central point in many legal cases lately, and MassPay has been recommending that businesses take a closer look at each job description in order to avoid potential trouble.
Hot spots that cause legal issues include the use of certain words, vagueness, and discriminatory requirements that serve to exclude a specific group or class of workers.
Job title: Teacher’s Aid
Classification: Salaried, not eligible for Overtime
Reports to: Head Teacher
Open date: September 1, 2017
The Teacher’s Aide will assist the teacher and students in all aspects of running a successful classroom.
Here are some potential Hot Spots that need to be looked at in any job description:
It’s important to use the terms “Exempt and Non-Exempt” instead of “Salaried” or “Not eligible for overtime.” Use of the latter terms is a red flag for audits and typically indicate that there might be a mismatch between the classification and the actual job description.
An exempt employee must (a) be paid at least $23,600 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties.
See FLSA Rules to learn more about Exempt and Non-Exempt classifications, the salary level test and the salary basis test.
One of the most common things we see is Position Overviews that are too vague and therefore, left open to interpretation. Courts frown upon vagueness and have sided with the employee in most cases because of vagueness. These overviews should not be overly detailed, but you do need to give the reader a clear sense of what the job entails.
In our Teacher’s Aide example, it would be wise to add supporting text that better describes what “assisting the teacher” means in order to better clarify the position. For example:
Assist the teacher by reading to children at story time, getting them ready for the afternoon nap, and helping the children mix paints, create artwork, and do proper cleanup.
Likewise, the statement “running a successful classroom” could mean virtually anything to anyone. This statement is far too vague to stand on its own. In this case, it’s probably best to strike that part, because “success” is subjective and usually consists of some type of metrics to arrive at that conclusion.
It is really important to prioritize the duties in a job description, beginning with the most important (essential) ones first. This helps the reader better understand the most important aspects of the job. Be careful to avoid the “kitchen sink” syndrome, where you overload the duties. If you have other duties that need to be specified, but are less critical, it’s best to create a separate section called Other Duties. Be sure that you prioritize these as well.
In our example, we doubt sharpening pencils is critical to the position.
Note: If a worker becomes disabled, or an applicant has a disability, the Essential Duties section is used to determine if reasonable accommodations can be made.
– Avoid vague duty statements
Vagueness can creep into descriptions of duties too. You want to be as specific as reasonably possible in describing the job, because failing to do so increases the chance of having an unqualified or dissatisfied employee. Avoid statements like “other duties as assigned” – this really doesn’t mean anything to the reader and may actually scare off some applicants because they might think you are hiding a duty they might not like.
Stringent and/or High Minimum Requirements
Companies sometimes set the bar too high, which only serves to limit the applicant pool and winds up increasing your time to fill metric. Wouldn’t it be better to cast a wider net and have more options? Perhaps that strategy might help you find good talent from outside the industry or even a rising star, who might not have the total years of experience you are seeking.
You should have a bona fide business justification for setting high education and experience requirements.
In our extreme example above, does it really take a Master’s Degree and 10 years of experience to be a Teacher’s Aide?
Our example is really discriminatory. Can you see why? Asking for young, able-bodied people is discriminatory against specific groups of workers, including older workers and those with disabilities. This is a clear violation of ADA and other laws. Be sure to steer clear of these terms and instead focus on requirements that are necessary for the job.
There are jobs where you do need to specify physical requirements or environmental exposure. These are important considerations that should be mentioned, but be mindful of discrimination wording.
Lastly, it never hurts to include an Equal Opportunity Employer statement with any job description.