Will Your Job Descriptions Shield You in a Potential Wage and Hour Audit?

Wage and hour laws and regulations are always a hot topic. Many employers spent a good part of 2016 ensuring compliance with the Department of Labor (DOL) Wage and Hour Division’s proposed changes to overtime rules that were scheduled to go into effect in 2016. More recently, the DOL issued new guidance for classifying unpaid interns. Thus, as compliance with wage and hour laws remains in the forefront of discussion, this is a great opportunity for employers to evaluate their job descriptions to ensure employees are properly classified under wage and hour laws.

An employee’s job description plays an important role in determining whether the employee is exempt from overtime compensation and minimum wage requirements under the Fair Labor Standards Act of 1938 (FLSA). The FLSA requires nonexempt employees be paid federal minimum wage (or more, if state or local laws or ordinances require more generous compensation) for all hours worked and overtime pay of time and a half the regular rate of pay for all hours worked over 40 in a workweek.

Minimum wage and overtime pay requirements do not apply to exempt employees — those that are employed as bona fide executive, administrative, professional, and outside sales employees, as well as certain computer employees. Exempt employees are paid on a salary basis and must meet a test specific to their respective duties (duties test) to determine whether they are eligible for the exempt status.

Under current overtime regulations, the minimum salary someone can be paid to be considered an exempt employee is $455 per week, though that is expected to increase once the final overtime rule is amended and implemented. To that end, on July 26, 2017, the DOL issued a request for information (RFI) to gather stakeholder feedback regarding the salary level ($917 per week) implemented by the final rule. It is expected that the final salary rule will lie somewhere in the middle of the current $455 and originally proposed $917 range, though the DOL also appears to be exploring multiple standard salary levels.

Job descriptions provide significant evidence when applying the above-mentioned duties test and help determine whether an employee (even those currently making a salary of $455 per week) truly qualifies for exemption. If kept current and accurate, they provide the employer with a form of irrefutable written record that clearly establishes an employee’s duties and exempt status during a wage and hour audit.

Job descriptions should explain the essential tasks of the position, any elements required for the position, and any necessary individual and professional qualifications (such as experience, education, physical ability, and language proficiency), and should reflect the employer’s expectations for an employee’s output, performance, and conduct. If the nature of a position has changed over time, such as if certain position duties have been eliminated due to a change in the employer’s business, the market, or the industry, or if an employee in a position is required to take on more duties for the employer, then updating job descriptions to reflect the current requirements of the job may provide the employer with protections against any future employee-based claim that the job description does not accurately reflect job duties or that an employee has been misclassified under wage and hour laws.

One of the best methods for auditing current positions held by one or more employees is to obtain feedback from the employee. This protects an employer in both wage and hour and other employment law matters. While employees should not be permitted to create their own job descriptions, they have vital information about what they do on a day-to-day basis and how they view their position requirements. By obtaining this information, an employer may limit exposure to claims that job descriptions don’t accurately reflect the position.

Of course, there is always a delicate balance involved in creating and maintaining job descriptions. A job description should not be too detailed; however, it should include as many job duties and expectations as possible, while providing employers a sufficient amount of flexibility. There are certain requirements that should always be included in a job description:

• Physical requirements for the position (such as lifting, standing, walking).
• Special attendance requirements.
• Exposure to particular weather, chemicals, or other hazards involved.
• Unusual job stress or requirements.
• Special work requirements (frequent overtime, some nights and weekends required, etc.).
• Reservation of the employee’s need to perform other duties as required by business needs.

The job description should not include any duties an employee would not be expected to perform.

Ideally, employees will regularly be updated about any changes to their job descriptions. This informs employees of job expectations, gives them the opportunity to provide feedback, and protects the employer from any claim that the job has changed and does not accurately reflect the current position.

Ensuring accurate and up-to-date job descriptions aids employers in other areas of employment law. Therefore, employers have even more incentive to regularly review and update job descriptions. Employers may choose to consult with employment counsel when auditing and/or updating their job descriptions.