Finally get that promotion? Get exclusive content, tips and tools to help you excel.
Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 12 cities across the U.S. this spring.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.
Famous last words in the wage-hour Hall of Infamy include, "Let's write the job descriptions to make them exempt." The problem is, job descriptions do not "make" employees exempt.
It is essential that employers steer clear of this misconception as they evaluate what to do in light of the coming changes in the compensation requirements for the federal Fair Labor Standards Act's "white collar" exemptions.
The Exemptions Are Reality-Driven
The amount and method of an employee's pay are not the only requirements for these exemptions. Instead, the exemptions apply (if at all) only on an employee-by-employee basis according to the nature of each individual's actual work as judged against specific and detailed requirements.
Moreover, in any U.S. Department of Labor (DOL) investigation or in a lawsuit, the legal burden of establishing that a person is exempt rests with the employer, who must prove that each exemption requirement is met as to every individual whose exempt status has been challenged. DOL and the courts construe Fair Labor Standards Act (FLSA) exemptions very narrowly, and doubt is often resolved against the employer.
So no job description, irrespective of what it says, will bring about exempt status for an employee whose actual duties and responsibilities do not meet the legal tests. Does this mean that job descriptions are irrelevant to FLSA exemptions? Absolutely not.
Does the Description Reflect Reality?
Job descriptions that are vague, ambiguous, jargonized, misdescriptive, out-of-date and/or poorly-written can lead management to ill-considered and incorrect decisions about who is or is not exempt. Those that are puffed-up for ego purposes, or to justify a compensation decision, or to trigger benefits-eligibility, or that are unrealistic or inaccurate in other ways, can have a similar impact. Flawed job descriptions (whether too favorable or too unfavorable) can also seriously undercut efforts to defend against legal challenges to an individual's having been treated as exempt.
On the other hand, job descriptions that are accurate, specific, realistic, clear, well-crafted and current can contribute appreciably to the employer's proper analysis of whether one or more of these exemptions may legally be applied to an employee. And while descriptions of this kind are unlikely to defeat an FLSA claim in themselves, they can play a significant role in defending against an allegation that management should not have deemed an employee to be exempt.
For example, one requirement for the FLSA's executive exemption is that an employee who has no authority to hire or fire must at least make suggestions and recommendations about those actions (or about other status changes) that carry "particular weight."
The fact that making these suggestions and recommendations is truly part of an employee's job helps to show that they are indeed given "particular weight," and listing these responsibilities in the job description is at least some evidence that they really are part of the individual's work.
The Bottom Line
Many employers are currently reconsidering how confident they are that certain employees satisfy the "white collar" exemptions' other standards even if the new compensation thresholds are or will be met. This assessment is best carried out by delving into the specifics of what those employees actually do, rather than by merely reviewing job descriptions.
Some employers will decide to improve the prospects for defending an employee's exempt status by modifying or expanding his or her duties and responsibilities. Whether and to what extent this will turn out to have been successful when it matters will depend largely upon whether, how and to what extent the nature of the employees' work has really been changed. Simply re-wording or re-writing a job description is unlikely to accomplish much.
John E. Thompson is a partner in the Atlanta office of Fisher Phillips. His practice focuses on wage and hour law, emphasizing issues relating to minimum wage, overtime, timekeeping and wage-payment requirements.
© 2016 Fisher Phillips. All rights reserved. Reposted with permission.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Please sign in as a SHRM member before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
SHRM Member Discounts Program
SHRM’s HR Vendor Directory contains over 3,200 companies