may2021 - 14

THE LABOR LAW ADVISOR
Job Descriptions and Essential Functions
UNLIKE COMMON WORKPLACE policies such as overtime or family and medical leave, which
are legally mandated, no federal or state laws or regulations require employers to have
written job descriptions. As a result, some employers have never taken the time to create
job descriptions. Choosing not to develop job descriptions fails to recognize how critical
they can be to numerous operational and legal workplace issues. Job descriptions can prove
invaluable in a wide range of circumstances.
Accurate and up-to-date job
descriptions are critical. A wellwritten
job description should guide
the employer in crafting effective
interview questions designed to
determine who among the candidates
is best qualified for the position.
Additionally, for applicants with
a disability, the " essential functions, "
should serve as the objective criteria
whether the applicant can be reasonably
accommodated in the position,
as required under the Americans with
Disabilities Act (ADA), or whether the
employer can decline to hire the applicant
on the basis of such disability.
An employer can decline to hire
applicants who cannot perform
" essential functions " when no reasonable
accommodation is available,
as that applicant is not qualified for
the job under the ADA. Likewise, an
employer is not required to employ
a current employee in job that the
employee cannot fulfill the essential
functions.
Job descriptions supply the list of
objective criteria for a wide variety of
decisions that must be made in the
workplace. Job descriptions should
provide the basis for employee performance
evaluations. Performance
evaluations should measure how
effectively an employee completes the
duties outlined in the job description
and in particular, the essential duties.
The pay rates applicable to a given job
are normally based upon the skills
and knowledge called for in the job
description. The descriptions of these
skills and knowledge should play a
central role in decisions to promote
employees to more skilled and higher
paying positions.
The typical job description has
four primary areas of focus: (1) A
brief description or overview of the
job; (2) A list of the job requirements
such as skills needed, level of experience,
educational requirements,
and similar information; (3) A list
of essential functions or core duties
of the position; and (4) Job-related
information such as hours required,
physical requirements, and general
working conditions (such as hot/
cold work environment and indoors/
outdoors or required travel). Thorough
job descriptions also include " nonessential
functions. "
These include any peripheral
duties or functions, that if removed,
would not fundamentally prevent the
job from getting accomplished. For
example, a peripheral duty or function
could realistically be assigned to
another employee without undercutting
the core purpose for which the job
exists to fulfill. Similarly, a peripheral
function could be completely eliminated
without substantially impacting
the performance of the job.
In addition to the critical role that
a well-written description fulfills in
hiring, promotions, evaluations, as
well as compliance with the ADA, they
also serve as the primary justification
an employer can rely on when classifying
an employee as exempt from
overtime pay under one of the " white
collar " exemptions under the Fair
Labor Standards Act (FLSA). The FLSA
provides for overtime pay exemptions
for " executive, " " administrative " , " pro14
MAY 2021 ■ www.CPAPracticeAdvisor.com
fessional, " " computer professional, "
and " outside sales " employees.
The job description outlining
duties is the first line of defense when
this exempt status is challenged. To
satisfy the " duties test, " a person
considered exempt as " executive "
must have as their primary duty the
management of the company or a
recognized sub-division thereof and
directly supervise at least two employees.
In the case of the " administrative "
exemption, the primary duties must
involve the exercise of independent
judgment with respect to significant
business matters.
The primary duties of the " professional "
must be work requiring
advanced knowledge in a specialized
field of science or learning or work
involving invention, imagination,
originality or talent in a recognized
field of artistic or creative endeavor.
" Computer professionals " must have
as their primary duties the application
of system analysis techniques and/or
the design, development or modification
of computer systems. " Outside
sales " employees must have as their
primary duty sales functions away
from the employer's place of business.
To ensure that the job description fully
supports the exempt status, it should
include a range of the required job
duties to demonstrate that the FLSAimposed
duties criteria are met by the
position. Additionally, exempt status
also requires that the person be paid
a specified minimum salary.
The " essential functions " element
of any job description sets out the
core of the job at issue. In the case
RICHARD D. ALANIZ
Senior Partner
Alaniz Schraeder Linker Faris Mayes, L.L.P.
ralaniz@alaniz-schraeder.com
of an issue involving the propriety of
an essential function, an employer's
determination of what is essential
is given substantial deference.
Sometimes overlooked in listing the
essential functions is the ability to
work more than 40 hours per week,
even if it only arises occasionally. In
addition, most courts have agreed
with employers that have included
" regular attendance " or some similar
requirement in the essential functions
of the job. However, it should be noted
that the Equal Opportunity Commission,
tasked with enforcing the ADA,
takes the opposite position on regular
attendance as an essential function.
One further factor to consider for
inclusion in the essential functions
is a brief description of the safety
requirements applicable to the job in
question. For example, circumstances
can arise where an employee's disability
prevents him or her from safely
preforming his or her job duties. In
one recent case, the federal Fourth
Circuit Court of Appeals ruled that
the ADA provided no protection to an
employee, who because of a disability,
was unable to comply with a job safety
requirement that all employees wear
steel-toed shoes.
The court ruled that the employee
was not a " qualified individual "
because she was unable to comply
with a valid requirement. This case
underscores the need to have current
and inclusive job descriptions with a
thorough discussion of the essential
functions, including valid safety
requirements necessary to perform
the job safely. ■

http://www.CPAPracticeAdvisor.com

may2021

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