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Questions—And An

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Published online in Wiley Online Library (wileyonlinelibrary.com). DOI 10.1002/ert.21479

Questions—And Answers

95

In today’s world of ever increasing scrutiny of management’s
employment decisions, thorough accurate employee job descrip-
tions are pivotal to establishing whether an employee can per-
form some or all of the functions of his or her job. The job
description must be as accurate as possible throughout the term
of the employee’s employment; if an employee’s job responsi-
bilities progress or change, the job description must reflect this.
Imprecise job descriptions that fail to accurately describe the
employee’s duties and responsibilities could subject employers to
significant legal risks. This column addresses a number of items
concerning the preparation of job descriptions.

WHAT IS THE FIRST STEP IN PREPARING A JOB DESCRIPTION?

Employers should conduct a job analysis before even preparing
the job description. A job analysis is the method of gathering and
analyzing information concerning all aspects of an employee’s
position. This expedites the preparation of an accurate job descrip-
tion, which should summarize the duties, tasks, and responsi-
bilities of each job.1 Furthermore, a job analysis is an effective
method to determine essential functions2 of a job as required by
the Americans with Disabilities Act (ADA), as well as exemption-
status determinations under the Fair Labor Standards Act (FLSA).

The focus of the job analysis should be on the objective of the
job and the actual job functions that achieve that objective, in
light of how frequently a function is executed, the bulk of time
dedicated to that function, and the ramifications if the function
is not executed. It is crucial that the outcome of the job analysis
highlight only what must be accomplished, as opposed to how it
habitually is conducted.3

Conducting Thorough Job Analyses and Drafting Lawful Job
Descriptions

Kevin J. Smith

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96 Kevin J. Smith
Employment Relations Today DOI 10.1002/ert

A job analysis should also include a study of the work behaviors that
are crucial to accomplishment of the job and, if the behavior yields a work
product, an analysis of the work product as well. If work behaviors are not
measurable, the job analysis should record and scrutinize those aspects of
the behaviors that can be measured and the resulting work products.4

Even though it is a time-consuming process for both management and
employees, it is important to properly obtain the fundamental information to
conclude job content, as well as essential and nonessential functions; requi-
site insight, skills, intelligence, expertise, and experience necessary to per-
form the job; and working conditions of the employee.5

WHAT IS THE PROCESS FOR PREPARING AN ACCURATE JOB ANALYSIS?

A job analysis should be a “neutral” process of determining the job obliga-
tions of current employees as well as a study of roles, functions, and duties
that need to be carried out by whoever is chosen for the job. Prior to imple-
mentation of a job analysis, upper-level managers, executives, and owners
need to educate their managers and employees of the need for accuracy and
impartiality throughout the process. Employees should be contributing to
this process from the formative planning stages to the concluding stages. It
is crucial that the employees have a sense of ownership in the job analysis.6

Nonetheless, employees engaging in the job analysis may inadvertently
mischaracterize their daily job tasks or responsibilities for a variety of
reasons. On the opposite side, a manager may differ in how an employee
characterizes his or her position, function, and tasks. Managers may also
be concerned about potential findings from the analysis or its ultimate use,
fearing that either could affect their management units or departments.7 In
order to avoid these potential pitfalls and have a constructive process, it is
imperative to have the support and cooperation of employees and managers
throughout the job analysis.

HOW DOES A JOB ANALYSIS HELP DEFEND AGAINST RISK
OF LEGAL CLAIMS?

A job analysis could be used as evidence for compliance with various
employment laws such as demonstrating a position’s essential functions of a
job for purposes of compliance with the ADA or as good faith in challenged
FLSA-exemption determinations, which may eradicate or lessen liability.
A job analysis could also serve as the foundation for preparing consistent
and complete job descriptions used in compensation determinations, train-
ing needs and programs, performance and expectation programs, and affir-
mative-action planning. Finally, the analysis could be used as a complete

Winter 2015

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Employment Relations Today DOI 10.1002/ert

97

assessment of staffing design and review of working conditions of employees
whose positions are being analyzed.8

HOW DOES AN EMPLOYER DRAFT A USEFUL
AND EFFECTIVE JOB DESCRIPTION?

Once data have been accumulated through a job analysis, the employer can
start the next step of drafting a job description. The job description should (1)
state the title and rank of the position within the organization, such as execu-
tive/upper-level management, administrative/secretarial, manual, and the like;
(2) state important/essential job functions, in the following order: an operative
verb, the duty, and the aspired event (e.g., “Records office conservation and
restoration to assure business longevity”); (3) enumerate job requirements,
notably education and experience requisites, but also mathematical acumen,
eagerness to learn, interpersonal skills, ability to work in groups, and so on;
(4) list likely physical exertions of the position (e.g., “must be fit to carry 50
pounds regularly in a nine-hour allotment” and supplement it with a notion
that reasonable accommodations will be made for the disabled employee, if
necessary); and (5) delineate nonessential tasks or responsibilities that can be
executed intermittently or would not affect the fundamental reason for the job.
Note that these tasks must be differentiated from essential job functions and
certainly not be taken under consideration for hiring decisions under the ADA.

Essential job functions are the duties and tasks that the employee is
expected to perform in the position. An essential job function concerns the
rudimentary tasks that an employee must be able to execute, with or without
reasonable accommodation, and it bears more than a marginal relationship to
the job at issue. Moreover, if the employer ends up in litigation, the essential-
function inquiry is not conducted as of an individual’s hire date, because the
ADA does not wish to restrict the employer’s ability to establish or change the
content, nature, or functions of a job. Rather, a court may inquire whether a
job function was essential at the time it was imposed on an employee. Courts
may consider any employer-written description executed prior to advertising or
interviewing job applicants as evidence of the essential functions of the job.9

In instances in which employers have challenged an employee’s claim
that he or she can carry out the essential functions of a job, some courts
have required that employers present evidence establishing those func-
tions.10 Factors that the courts will consider in establishing whether a job
function is essential include11:

❏ The employer’s judgment
❏ Written job descriptions
❏ The amount of time spent on the job performing the function

Employment Relations Today

98 Kevin J. Smith
Employment Relations Today DOI 10.1002/ert

❏ The consequences of not requiring the plaintiff to perform the function
❏ Mention of the function in any collective-bargaining agreement
❏ The work experience of past employees in the job
❏ The work experience of current employees in similar jobs
❏ The consequences of failing to require the employee to perform the function

Additionally, the Equal Employment Opportunity Commission (EEOC)
regulations state the following as a nonexhaustive list of explanations of
why a function may be essential12:

1. The job exists to perform that specific function.
2. Only a finite number of employees are available to perform this function

(“an employer has only a few employees, the ability of each to perform a
multitude of functions may be critical”).13

3. The function is highly specialized, and the incumbent is hired for his or
her expertise or ability to perform the function.

WHAT IS THE LEGAL SIGNIFICANCE OF A JOB DESCRIPTION?

An employee’s job description (and job analysis underlying it) could have
significant legal implications for an employer, and great care should be taken
to prepare appropriate descriptions. Indeed, after the ADA was enacted
in 1990, it greatly shaped the need for and the importance of job analyses
and job descriptions.14 To the extent that the job description does not accu-
rately describe the essential functions of an employee’s job, the employer
may, among other things, expose itself to legal liability for improper deci-
sion making related to accommodations for employees who may be dis-
abled. Similarly, under the FLSA, job descriptions are crucial to determining
whether an employee’s position falls within any of the FLSA exemptions.

WHAT ARE BEST PRACTICES AN EMPLOYER SHOULD ADHERE TO?

In order to provide your company with the best chance of being compli-
ant with the ADA, FLSA, and other similar state statutes, creating accu-
rate and thorough job descriptions is a good start. Even if job descriptions
already exist, job responsibilities often fluctuate over time and an antiquated
description could be a detriment to an enterprise.

Finally, to make sure your company’s job descriptions are as effective as
possible, consider these additional steps:

1. Make sure that the effective date appears on every job description. If the
job description was modernized, make sure that the revision date is on
the job description.

Winter 2015

Questions—And Answers
Employment Relations Today DOI 10.1002/ert

99

2. Prior to advertising any vacant positions, ensure that the job description
is up to date.

3. Routinely review job descriptions (and conduct job analyses) to ensure
that a job description reflects what the employee actually does and sets
out the job’s essential functions.

NOTES

1. How to conduct job analysis, description and evaluation, 1995 WL 17809646.
2. Using job analysis to determine the essential functions of a job. 1 Emp. Discrim. Coord. Analysis of

Federal Law § 6:56.
3. Job analysis to determine essential functions, 1 Guide to Employee Medical Leave § 5:30.
4. 41 C.F.R. § 60–3.14.
5. Id., see note 1.
6. Id.
7. Id.
8. Id.
9. 42 U.S.C.A. § 12111(8).
10. Cox v. Wal-Mart Stores Inc., 2011 WL 2632086 (9th Cir. 2011).
11. Price v. City of New York, 2008 WL 399757 (2d Cir. 2008).
12. 29 C.F.R. § 1630.2(n). The examples are from interpretative guidance published as an appendix to 29

C.F.R. Pt. 1630 and from the EEOC Technical Assistance Manual on the Employment Provisions
(Title I) of the Americans with Disabilities Act.

13. Legal Guide to Human Resources § 2:9.
14. See ADA Section 101, Definitions (8).

Kevin J. Smith is special counsel at Sheppard, Mullin, Richter &
Hampton LLP in the firm’s Labor and Employment group. He has
extensive experience in employment litigation, including trials and
appeals in federal and state courts, and conducting arbitrations and
administrative hearings. His employment law practice also includes
counseling Fortune 500 companies in all types of employment and labor
law matters. He may be contacted at kjsmith@sheppardmullin.com.

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Inc. and its content may not be copied or emailed to multiple sites or posted to a listserv
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