Proposed U.S. DOL Changes Can Impact Your Job Descriptions

by Sharlyn Lauby | Posted | Performance Management

Proposed U.S. DOL Changes Can Impact Your Job Descriptions

Earlier this year, the U.S. Department of Labor (USDOL) issued some proposed changes to the overtime regulations under the Fair Labor Standards Act (FLSA). While the changes haven't gone into effect yet, organizations will want to stay informed. It also can't hurt to consider the implication of changes to the daily business.

One of the most essential documents used by business is the job description. It's sometimes easy to forget about how much we rely upon them. Our existing job descriptions could be affected by the USDOL changes being proposed so I asked Kate Bischoff, JD, SHRM-SCP, with the firm of Zelle Hofmann to help us understand the implications.

And you know we have to say it so please remember that Kate's comments should not be construed as legal advice or pertaining to any specific factual situations. If you have detailed questions, they should be addressed with your friendly labor attorney.

Kate, job descriptions are used for many things: recruitment, performance, compensation, compliance, etc. From an attorney's perspective, why should organizations have job descriptions?

Kate: I think of job descriptions as one of the most essential documents in the employer-employee relationship, so there's no doubt they are important to employment lawyers.

If we're discussing terminating an employee for poor performance, we'd look to the job description to describe what the performance expectations are. If we're debating whether a position is exempt under the FLSA, we'd look to the job duties in the job description. If we're advising a client on whether a requested accommodation is reasonable, we'd look to the job description to describe essential functions of the position, i.e. job duties and responsibilities.

I can't think of a case where a job description didn't matter. I look at them early and often as I evaluate and defend an employer's position.

Job descriptions need a certain amount of specificity to serve a purpose, but not so many specifics that they aren't flexible to the changing needs of business. What are the top two things that must be in every job description?

Kate: If I'm limited to only two, then for me the most important things are:

1) Job qualifications (education, experience, and any physical requirements) and

2) Job duties/responsibilities.

The best job descriptions tell me what the employer needs the position to accomplish and what it expects from the person in the position. While these are not necessarily things that can really 'sell' a position for recruiting purposes, they are the meat and potatoes from a risk mitigation perspective.

Do the USDOL proposed changes to the FLSA impact job descriptions? If so, how?

Kate: Kind of. The proposed changes to the FLSA reset the salary threshold at which the so-called 'white collar' exemptions apply. Currently, if a position earns less than $455 per week, it's pretty certain that the incumbent is entitled to overtime payments for hours worked that exceed 40 per week. There isn't much need to look at the duties specified in the job description. If the position earns more than $455 per week, however, then we look to the job duties in the job description to see if the position is exempt from overtime requirements when analyzed under the job duties tests in the FLSA.

Under the proposed rule, the new salary level will be $50,440 per year, which is more than double the current $455 per week threshold. (The level will also be tied to Bureau of Labor Statistics data that presumably would raise the salary level every year to meet the 40th percentile of weekly earnings for full-time workers.) Under this higher threshold, we will have to look to job descriptions when the position earns more than the $50,440 per year, but positions earning under $50,440 per year will most likely be non-exempt. This could mean that an employer will have managers with a full range of managerial duties who will become eligible for overtime. The USDOL estimates that if the proposed rule is implemented, 5 million more employees will become non-exempt.

Are there any proactive measures that an employer can take?

Kate: Because the proposed rule can mean an increase in wage expense, employers should take a look at job descriptions for positions that are compensated between the 'old' and 'new' salary thresholds. It will be useful to do this before the rule is fully implemented sometime in 2016. Employers should ask if it makes sense to keep certain duties with certain positions, and consider whether there are organizational changes that can be made to accomplish business goals with less cost. These organizational changes will have a significant impact on job descriptions and require some businesses to examine their overall business practices.

In addition to comments on the new salary threshold, the USDOL is looking for comments on the current job duty tests associated with the white collar exemptions. If they receive comments suggesting that the duties tests should change, and if the agency does makes changes, updating job descriptions will move to the top of every employer's to-do list.

Speaking of updating job descriptions, I've always felt the most effective job descriptions are current job descriptions. It's so easy for "update job descriptions" to fall to the bottom of the 'to-do' list. Regardless of what the USDOL decides, what can HR pros do to make updating job descriptions a bigger priority?

Kate: I wish I had a magic wand that would make updating job descriptions a top priority and make sure it gets done regularly. Unfortunately, I do not. But here's what HR can do. Make updating job descriptions a regular, required occurrence. Job descriptions should be updated annually, every time a position becomes vacant, during onboarding in the position, and every time there is a change in management. Not knowing what is expected is always one of the top five reasons employees are not actively engaged in their work. Keeping a job description current can help set clear expectations.

Obviously, technology can play a role in creating and maintaining job descriptions. Are there legal issues to consider?

Kate: You bet, technology can help. First, consistency is always a concern. No employment lawyer likes to see a job description for one cashier look dramatically different from the job description of another cashier in the same business unit. Technology can help an employer make job duties consistent for each position. In addition, where team work, collaboration, and communication are essential, technology can create and insert standardized language, tied to the organization's mission or values. And your technology can put it on every job description with just a few clicks.

Second, with the right technology, updating job descriptions can become truly routine. Employers can set annual reminders, require managers to take action before recruitment, and make the acknowledgement of the job description a part of the onboarding process. Some managers might view this as another hurdle to getting actual work done, but they need to remember that job descriptions shape, describe, and drive the actual work.

There are legal issues that can result from over-reliance on technology, of course. The ease and consistency technology can produce can lull employers into thinking they don't have to actively review job descriptions from a compliance perspective. Particularly in instances where employees seek reasonable accommodation of a disability or for religious reasons, employers must review job descriptions - and all of the essential functions they describe - carefully and frequently.

My thanks to Kate for sharing her knowledge with us. Kate advises executives and human resources professionals in a wide range of industries on employment law matters from recruitment to termination and beyond so be sure to check out her blog and follow her on Twitter.

Kate Bischoff

About Kate Bischoff: An energetic and enthusiastic attorney and SHRM-SCP-certified human resources professional, Kate advises executives and human resources professionals in a wide range of industries on employment law matters from recruitment to termination and beyond. Her strengths include diagnosing and remedying areas of weakness in human resources practices and policies, ensuring compliance with U.S. laws and the regulations of other jurisdictions, training employees on a variety of organizational behavior and equal employment opportunity topics, creating functional policies and practices to meet organizational and division-specific goals, and handling investigations into employee grievances and as part of union avoidance strategies. Kate's passionate about improving company culture and using technology (social media and big data) in the workplace.

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