Attorney Michael A. Shadiack at Friday’s Performance Management seminar
Perhaps the biggest problem with job descriptions is businesses do not spend enough time working on them. After all, they’re just to document the file, right?
Employers who approach job descriptions this way are playing with fire. At NJBIA’s Performance Evaluation seminar on Friday, attorney Michael A. Shadiack of Connell Foley in Roseland demonstrated how a job description can land an employer in hot water.
To summarize:
“Jane” is a salaried employee, exempt from overtime requirements. One of the duties in Jane’s job description is hiring and firing employees, but Jane wants no part of the hiring and firing part and refuses to do it. For whatever reason, the employer (or her immediate supervisor) don’t require her to do that; they let it go.
The problem is overtime laws require employees to perform certain duties to legally be exempt from overtime, one of which (for the executive exemption) is hiring and firing employees or their recommendation be given particular consideration. If Jane doesn’t do any other work that qualifies her as exempt under the law, then she is legally required to be paid overtime, i.e. 1.5 times her regular pay for every hour over 40 that she works during the week.
“When you go through this analysis, you have to look at the employee’s job description,” Shadiack said. “You want a section of the job description that lists all of the essential functions of that job.”
No seminar can cover every potential HR problem, and job descriptions should be developed with legal counsel to make sure they are done properly. Nevertheless, Shadiack offered four best practices that will address many of the common job description mistakes employers make.
- Make sure the job description fits the work.
This addresses the Jane situation described above. Employment laws from overtime to discrimination to wage and hour laws will be enforced based on the work the employee actually performs, not what’s simply listed in the job description (if the job description is not followed or enforced).
Because Jane is not hiring and firing people, she could be misclassified as an exempt executive employee, which means the employer could be penalized by the government for failing to pay Jane overtime for time worked over 40 hours. Under the state’s new Wage Theft Act, this could lead to up to six years of back pay, liquidated damages, and potentially jail time for the business owners and/or officers.
“The job description is to address the job, not the person,” Shadiack advised seminar attendees. “This is a common error by employers.”
Instead of ignoring what’s in the job description, make the necessary change to the job description. If you’ve decided that Jane either cannot or should not perform certain duties, then change/update the job description. If she simply refuses to do what’s in the job description, document the refusal and take appropriate disciplinary action.
- Properly define situations when employees are “on call.”
“Ask yourself: Is this employee ‘engaged to wait’ or ‘waiting to be engaged?’” Shadiack said.
The answer will determine whether or not you have to pay them while they’re waiting for the phone to ring.
Shadiack used the example of a superintendent at an apartment complex. If the job requires the super to be on site waiting for requests for his or her services, that employee is “engaged to wait” and needs to be paid for the time.
If, on the other hand, the employee is told they can do what they want with their time but need to respond if they are called upon, that is called “waiting to be engaged” and they are paid for the time only after they are called upon to work and perform services.
- Involve your managers and your supervisors.
Do your managers know what’s in the job descriptions of the people they manage? Writing good job descriptions is just half the story; they have to reflect the work those employees actually do.
In the above example, Jane’s job description may have been written accurately. The problem is Jane wasn’t doing her job, and her managers didn’t do anything about it. At the same time, if Jane’s manager had been involved in reviewing the job description, the manager could have, and should, flag it.
- Be clear and use active verbs.
The law often requires using very specific language that is not the always as clear as plain English. Job descriptions are one area where clarity and simplicity are legally beneficial. Plus, you want your employees and their managers to know exactly what’s expected of them.
Shadiack offered a long list of verbs that work well in job descriptions, including “approve,” “collect,” “draft,” “establish,” “supervise,” and “reconcile” among others.
