Are Job Descriptions Required by Law?

We know job descriptions (JDs) are essential for HR, employees, management, and company leadership. We also know that JDs are critical for compliance with frameworks like the Equal Pay Act, Family and Medical Leave Act (FMLA), Fair Labor Standards Act, Americans with Disabilities Act (ADA), and the Occupational Health and Safety Act (OHSA), among others.

But are they required by law? The short answer is “no.” However, job descriptions can be used as evidence in legal proceedings should there be questions or conflicts about the job.

Regulatory frameworks like the ADA, FLSA, and the Civil Rights Act outline what must be included and excluded from job descriptions. However, companies are under no legal obligation to provide one at all. While some companies may choose not to create and maintain job descriptions, doing so has many benefits, including mitigating risk in the event of a dispute, litigation, or if there is an investigation into compliance violations.

Today, let’s take a deep dive into job descriptions and compliance and demystify the relationship between job descriptions and the law.

Regulatory Frameworks that Inform Job Description Creation

While companies are not required to maintain job descriptions, most do. Lawsuits can be incredibly costly for employers, not to mention the impact on morale and lost productivity.

Laws outlined by the various frameworks cover the gamut of work situations, from hiring and firing to wages, benefits, training, promotions, and harassment. The Equal Employment Opportunity Commission (EEOC) upholds these laws and any federal frameworks that prohibit employers from discriminating against employees or applicants based on their gender, age, color, ethnicity, religion, disability, sexual orientation, pregnancy, and motherhood.

In 2022, the Equal Employment Opportunity Commission (EEOC) resolved more than 65,000 cases.

FLSA

The Fair Labor Standards Act establishes the minimum wage, overtime pay, maximum hours worked, child labor standards, and recordkeeping related to the above.

In 2022 alone, 5,905 lawsuits were filed under the FLSA, amounting to $134 million owed to workers due to overtime violations.

Jobs must be classified accurately to be enforceable by the FLSA. To ensure proper classification, employers must clearly understand the job, the employee’s essential functions, and the percentage of time they spend performing those tasks. In case of a dispute, the job description is used to support classification during a claim.

For one JDXpert client, job descriptions were the linchpin in avoiding a potentially costly wage and hour lawsuit.

Equal Pay Act and Pay Transparency

Pay equity is an ongoing issue and the source of much litigation. Some high-profile cases in recent years include suits against Disney, Google, and Hewlett-Packard. The overwhelming majority of pay equity disputes (90%) are related to gender bias.

• In 2023, Goldman Sachs settled a class action lawsuit alleging gender discrimination in pay and promotions.
• US Soccer settled a pay equity suit with the Women’s National Team for $24 million.
• The average settlement in the top ten was $600 million, an increase of 100% over the previous year.

Detailed job descriptions are essential to support equal pay decisions and may provide a defense in a dispute.

Providing information on wages and overtime is not required at the federal level. Only 18 states currently have pay transparency laws. Even if employers are not mandated to comply with pay transparency regulations, doing so may help to attract a higher caliber of candidates.

About half of all job seekers cite frustration when they experience a lack of transparency in job postings and interviews—not the best first impression for a company to make, and possibly impetus to take their job search elsewhere.

ADA

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities. If the job description does not accurately describe the essential functions of a job, employers may be putting themselves at risk of a dispute.

For job descriptions to be ADA compliant, they must detail the position’s essential functions; in other words, duties that the employee must complete to fulfill the job’s purpose.

JDs should focus on the job’s expected outcomes, not necessarily how the job is performed. Approaching the job description in this manner allows for reasonable accommodations if applicable. Note that employers are not required to reallocate essential functions, but many disabled employees can achieve the result despite having to do so non-conventionally. In any sense, it’s vital to articulate essential functions so all stakeholders understand what’s possible.

Writing Legally Compliant Job Descriptions

While companies are not legally obligated to create or maintain job descriptions, doing so can help protect them from lawsuits or disputes based on the abovementioned frameworks.

Here are a few tips and best practices to help ensure your job descriptions comply.

• Keep JDs up-to-date and accurate. Review JDs periodically to ensure they reflect the job’s duties and essential functions.
• Have employees sign off on their job descriptions (FLSA). At hiring, anytime there is a change or update in the JD or during yearly reviews, have the employee view, comment, and sign off on the document. Their signature will represent their understanding of the job and its expectations.
• Apply Department of Labor standards (FLSA) to ensure salary, basis, and job duties comply with federal mandates.
• Periodically audit JDs (FLSA) to ensure they are accurate and reflect how the job is performed today. Work with stakeholders (management and employees) to validate essential functions and the percentage of time spent on each.
• Pay attention to language (ADA). ADA-friendly terminology might include stating how much weight would need to be lifted vs. saying the employee must be capable of lifting heavy weights. Focus on the job’s successful outcomes instead of how the individual might accomplish the task. Work with stakeholders (management and employees) to validate essential functions and the percentage of time spent. Understanding a job’s physical demands and working conditions is necessary to determine accommodations.
• Categorize jobs accurately to enable pay comparisons (Pay Equity). JDs can justify and defend decisions. Use job similarity scoring to identify pay equity gaps or issues.
• Include pay ranges on job postings (Transparency) to show good faith.
• Maintain job description history. Even older JDs may be relevant in case of a dispute. The EEOC will accept older JDs if it can be proven they existed before a posting.
• Identify each role’s essential functions and verify that these tasks are, in fact, crucial to the job.
• Eliminate biased language from the JD. Job descriptions should focus on the job, not the person doing the job. Examples might include using gender-specific language or verbiage that could be construed as masculine or feminine.
• Ensure signed JDs are accessible and available when needed. High-compliance industries, like healthcare, experience regular inspections from various agencies, some of which will request to see job descriptions to support their decisions.

The Bottom Line

Though companies are under no legal obligation to create and maintain job descriptions, they can help to reduce the risk of litigation and support the organization in maintaining compliance with multiple federal frameworks.

To learn more about how JDXpert streamlines job description creation and management, book a demo today.