By now you know that you want to hire an employee for your business; but how? Hopefully, you have read our articles on the employment lifecycle and how to hire an employee as primers, but one of the preliminary concerns begins after you’ve found the right person for the job. This article explores how to effectuate the hire and set your new employee up for success.
Offer Letter & Job Description vs. Employment Contract
The biggest misconception is that employees should have an employment contract. Unlike hiring independent contractors, having an agreement in place is not ideal for all employees. In most cases, employees should always be classified as “at-will”, which means that either you or the employee can end the relationship at any time, for any reason, with or without notice. To preserve this at-will relationship, an offer letter & job description provide the most coverage. Let us explain.
What’s a Job Description?
A job description (JD) is typically attached to an offer letter for new employees. An offer letter substitutes an employment contract and protects employers from committing to employees long-term. The offer letter typically offers the potential worker a position on an at-will basis and also includes the proposed compensation and any other benefits. Employers should attach a job description to the offer letter so both the employer and the employee share a mutual understanding of the job expectations.
Why Are Job Descriptions Important?
Job descriptions help your business assess the skills required of a future employee, set performance expectations, provide the basis for compensation, support employee classification decisions, and help evaluate accommodations for disabilities.
- Recruiting. With a document that specifically sets forth the minimum job requirements, you help ensure that everyone involved in the hiring process is on the same page. Position descriptions are converted to job descriptions post-hire. The substance remains the same; the document is converted from a job advertisement to an airtight legal document.
- Performance Management. Once an employee comes on board, a job description gives the supervisor and employee a mutual understanding of the job expectations. For more on performance management read our article on performance management.
- Compensation. Job descriptions are also an essential ingredient of a comprehensive compensation program. A JD provides a basis to compare market data of similar jobs.
- Risk Management. A well-written JD can provide a basis for a legal defense for cases involving the Americans with Disabilities Act (ADA), as well as the Fair Labor Standards Act (FLSA). In these cases, the courts look to the “essential functions” of the job. Similarly, a job description may be reviewed by the U.S. Department of Labor in determining whether a job is exempt from overtime pay under the FLSA (these are all crucial pieces included in the JD Template). More information on employee classification here.
What are “Essential Functions”?
It is important that only those functions that are fundamental to the position are listed under the Essential Functions and Responsibilities section. This information is critical as it could be the key defense to a lawsuit under the ADA. There are several reasons why a function could be considered essential:
- The position exists to perform that function. For example, an employer advertises a position for a “floating” supervisor to substitute for an absent day, night, or graveyard supervisor. Thus, this position exists in order to have someone cover for absent supervisors on any of these three shifts. Consequently, the ability to work any time of day is an essential function of the job.
- There are a limited number of other employees available to perform the function or among whom the function can be distributed. For example, a file clerk who works in a very busy office of three may have an essential function to answer a telephone if all three employees are required to perform many different tasks.
- The function is highly specialized and the person in the position is hired for his or her special expertise or ability to perform it. For example, a company that wishes to expand its business in the Japanese market may hire a new sales representative who can communicate fluently in Japanese. Japanese fluency is an essential function of the job.
How To Draft the Essential Functions and Responsibilities Section
- Use action verbs (e.g. evaluates, collects, prepares, moves, communicates, etc.); do not use “assists” or “is responsible for.”
- Specify work objectives/outputs.
- Reduce hyperbole and try to use sentences that answer “what” and “why” questions rather than “how.”
Essential functions should never include the following language, “performs other duties as assigned.” If it is an essential function, it needs to be described.
To avoid exposure under the ADA, it’s critical that the job description language focuses on the results, not the methods. For example, it’s superfluous to include “answers the telephone in a pleasant and friendly manner”. Instead, something like, “answers the telephone and directs callers to the appropriate party” is more on point.
Do not include language that is biased toward employees with disabilities. Some examples of unbiased language are:
- “Communicates” rather than “talks” or “hears”;
- “Moves” or “transports” rather than “carries”;
- “Determines” or “identifies” rather than “sees”;
- “Operates” rather than “feels”.
Wrapping It Up
The quick and dirty is that offer letters & job descriptions are a simpler and more effective way to hire employees. The language in the job description sets the expectations for the job and provides a helpful “rubric” (of sorts) for the performance management of the employee. But remember, the job description is a living document that can change as the needs and expectations of the job and your business change. As always, feel free to reach out to make sure your offer letter & job description is on-point!
Revised by: Zachary Avina – 03/30/18
- 7 Steps to Hire An Employee
- Have You Properly Classified Your Employees?
- Why an Employee Handbook is Really an Employer Handbook
Disclaimer: Although this article may be considered advertising under applicable law and ethical rules, the information in this article is presented for informational purposes only. Nothing should be taken as legal advice. Reading this article does not form an attorney-client relationship with us. An attorney-client relationship is formed through a signed engagement agreement. If you would like further information, wilkmazz pc would love to help you out! Feel free to reach out with any questions.
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