Legal Requirements of Job Descriptions

Written by heidi cardenas
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Legal Requirements of Job Descriptions
Job descriptions must be legally compliant. (Documents image by GHz from Fotolia.com)

In "The Job Description Handbook," Marjorie Mader-Clark describes a job description as "a living document" and "the basic tool you use to hire, measure and manage the performance of each of your employees." Job descriptions must be current, accurate, clear and legally compliant to be useful to managers and employees. Job descriptions are important documents for legal defence against discrimination or wrongful termination claims.

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Avoid Discrimination

Employment discrimination is illegal under federal and state laws. Although most federal anti-discrimination laws apply to companies with specific minimum numbers of employees, many state laws are applied and enforced more broadly. Avoid using language in job descriptions that is or could be misunderstood to be discriminatory on the basis of race, colour, national origin, religion, sex, age, citizenship status and disability.

Be careful with language and fluency requirements, as this may appear to be an attempt to screen out candidates based on their national origin if specific language ability is not a requirement of performing the job. Use inclusive language, avoiding gendered terms such as "salesman" and use "salesperson" instead. Avoid the appearance of age bias with terms such as "recent graduates preferred" or "energetic, youthful candidates sought." Be careful to avoid disability discrimination by clearly defining essential functions of the job, since someone qualified to perform essential functions cannot be excluded because of a disability.

Avoid Undermining At-Will Employment Status

Under the Doctrine of Employment-At-Will, employment is understood to be voluntary and indefinite for employees and employers. Employees may quit at any time for any or no reason, and employers may fire, lay off or decline to hire candidates, or change the terms and conditions of employment at any time as long as there is no violation of employment, labour and discrimination laws. Job descriptions should not contain any language that states or implies that the job is anything other than at-will. For example, the job description for a full-time permanent sales position should not state any specific beginning and ending dates for employment which would make it an enforceable employment contract.

Avoid Privacy Violations

A job description is used in the recruiting process by both hiring managers and applicants. Hiring managers will question applicants about their skills, abilities and experience pertaining to information in the job description. Applicants will express interest in the job and ask questions about the job based on information in the job description. Any references to applicants' private lives such as marital status, political affiliations or off-duty activities and behaviours mistakenly give interviewers the impression they need to question applicants about them, and give applicants the impression they need to answer questions about them.

Avoid Overtime Classification Discrepancies

Federal law requires employers to pay non-exempt employees overtime pay of time-and-a-half for every hour worked over 40 hours a week. Job descriptions must document proper employee classification and definition to avoid confusion and discrepancies in payroll. Describing in the job description an hourly non-exempt employees' duties as "uses independent judgment," "makes decisions at own discretion" and "exempt," or requiring an exempt employee to be available to work overtime, creates legal reporting and payroll problems.

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