“Ask Sarah” Column

Dear Sarah,

I am an HR manager, and I’m looking at a stack of projects that I am trying to prioritize. Our job descriptions haven’t been updated in years, but our policy manual was updated about two years ago. How important are updated job descriptions and policy manuals? Any advice on whether to do this sooner or later and tips on making the process easier?

Signed,

This Wasn’t In My Job Description

Dear Job Description,

Updated job descriptions and policy manuals are crucial, not only in providing employees with accurate guidance on job expectations, but also to defend claims of discrimination and failure to accommodate.

In a recent case, a federal appeals court found that information in the job description and policy manual was key evidence in determining an employer’s liability. In that case, the plaintiff requested an accommodation to be able to restrict the length of his required shift to 12 hours due to a disability, sleep apnea. The employer denied the accommodation and ultimately terminated the employee because he could not perform an essential function of his job. The employee sued for failure to accommodate his disability, but the court determined that the employer was not liable. Since both the job description and the policy manual specifically required this position to be available to work a 16-hour shift, in the form of two back-to-back 8-hour shifts, this requirement was an essential job duty. The plaintiff’s inability to perform this essential function, with or without reasonable accommodation, made him unqualified for the job. Cuellar v. GEO Group, Inc., No. 22-50135, 2023 WL 4535079, *3 (5th Cir. July 13, 2023).

Referring to job descriptions and policy manuals as evidence of an essential function is much more convincing when these documents already exist. Accurate job descriptions are also critical roadmaps to use when posting a job opening, hiring, and evaluating performance.

Additionally, now is a great time to review and update job descriptions! The Department of Labor recently released a proposed update to the salary threshold of the Fair Labor Standards Act overtime exemptions. The proposed changes would raise the salary threshold from $684 to $1,059 per week, with automatic increases to the threshold every three years. These proposed changes are not final and are not yet effective, but employers should start reviewing their exempt positions for any position that would no longer meet the salary threshold.

One tip for updating job descriptions is to get the employees in each position to suggest edits to their own job descriptions. Create a questionnaire for employees to assess whether the current job description accurately reflects what they do every day, what they need to know how to do, and what skills and background it takes to do the job right. Many employees take this responsibility seriously because they want the document to fully reflect their full duties. You can then compare the results with others in the same job, ask supervisors for their input and suggestions, and then edit to get a more up-to-date job description.

Keeping your policy manual updated is also very important. Generally, policy manuals should be reviewed and updated at least every two years to capture changes in law. Some examples include changes to disability, pregnancy, and religious accommodations, which are covered in more detail in our article this quarter discussing accommodations. Additionally, in 2023, the Texas Legislature passed the Crown Act, which expands race discrimination to cover protective hairstyles. For private employers, the National Labor Relations Board recently updated the standard for policies that may have a chilling effect on protected activity. These are just a few examples of recent legal changes that could impact your policies. If it has been more than a year or two since your last policy update, you should prioritize reviewing and updating your policies.

Give us a call if you want help in reviewing your job descriptions or policy manual to ensure that they are up-to-date and are most beneficial to your employees and to the organization.

“Ask Sarah” is prepared by Sarah Glaser, Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sarah at 512.322.5881 or sglaser@lglawfirm.com.