If job descriptions aren’t a part of your company’s compliance efforts, they should be. And if your hiring professionals aren’t up to speed on job description compliance law, they need to get up to speed.
It’s essential for employers subject to U.S. labor and employment law to understand and comply with the five most important laws that relate to job descriptions. For compliance, clarity, and inclusion.
More on compliance + pay transparency:
Job Description Compliance Helps Recruiting, Compliance
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Guidance for New Pay Transparency Laws
What do clarity and job description compliance law do?
Clarity and inclusivity have benefits for your company that go beyond compliance. You can provide more clarity about roles to job seekers, so they can better assess their ability to be successful in the role. You can also be more welcoming to job seekers from all backgrounds. Both help you attract more qualified applicants and protect against candidate ghosting and drop-off, resulting in a more efficient, effective hiring process.
Meanwhile, understanding job description compliance law helps you protect your workplace. Avoiding fines, civil litigation, or legal trouble can be difficult, given the complexity of the regulations. (The federal government has 180 statutes governing the workplace.) Adding job descriptions to your compliance efforts can help.
Here are the five most important U.S. laws that relate to job descriptions…
1. Americans with Disabilities Act (ADA)
The ADA prohibits discrimination against persons with disabilities or persons related to or associated with a disabled individual. It applies to transportation, telecommunications, public spaces, commercial facilities, even the U.S. Congress. And, of course, employment.
For companies with 15 or more employees subject to the law, the ADA prohibits discrimination in recruiting, hiring, pay, promotions, and other areas. It limits the questions recruiters can ask about a person’s disability during the hiring process. It also requires companies to offer reasonable accommodation for qualified individuals with disabilities.
By adding a reasonable accommodation statement to your job descriptions, you can show your commitment to job description compliance law. (Example: “We are committed to providing access, equal opportunity, and reasonable accommodation for persons with disabilities.”)
You can also reassure job seekers covered by the ADA. And by accurately describing the work environment, essential job functions, and the physical demands of a job, you can help job seekers assess their ability to be successful in the role.
2. Age Discrimination in Employment Act (ADEA)
The ADEA prohibits discrimination or harassment based on age against employees (and others) who are over 40. For companies with 20 or more employees subject to the law, the ADEA covers all aspects of employment, from hiring to firing to everything in between.
A couple of interesting points about the ADEA…The law covers discriminatory employment-related activities, but it also covers harassment in the workplace. Not only that, it goes beyond employees to cover others doing business with the company, such as customers.
Now, it’s unlikely that you’d include derogatory ageist comments in your job descriptions, but unintentional signals about age can sometimes slip through. You want to avoid language that emphasizes the youthfulness of your employees, like ‘young team’ or ‘group of digital natives.’ Even if it’s not blatant, language that stresses youth can signal ageist attitudes and deter some job seekers.
What about including ‘years of experience’ as a qualification? It depends on how you use it, but it’s not ageism in most cases.
Note:
While the ADEA applies to workers over 40, younger workers can feel discrimination too. To be more inclusive, avoid language that stresses maturity or reinforces stereotypes about younger generations.
Watch our webinar on pay transparency compliance
3. Section 1981 of the Civil Rights Act of 1866 (CRA 1866)
CRA 1866, enacted in the aftermath of the Civil War to protect newly freed slaves, entitles all U.S. citizens to certain inalienable rights. Those rights include owning property, suing in court, and making contracts, including employment contracts. CRA 1866 (via the Supreme Court) prohibits retaliation against anyone who blows the whistle on violations. It also gives federal courts, rather than state courts, jurisdiction over violation cases.
For companies with 15 or more employees subject to CRA 1866, Section 1981 seeks to ensure equality when it comes to employment contracts. Obviously, requirements or suggestions in job descriptions that candidates be a certain race are a complete and utter no-no. Removing statements about race from your job descriptions not only helps compliance, it also helps inclusivity. You want to be sure you’re showing commitment to both.
4. Title VII of the Civil Rights Act of 1964
Title VII of CRA 1964 prohibits discrimination on the basis of race, color, national origin, religion, gender, and now gender identity or sexual orientation. For companies with 15 or more employees subject to CRA 1964, Title VII covers all aspects of employment while also protecting employees against retaliation.
Like Section 1981 of CRA 1886, Title VII aims to prevent discrimination based on race but broadens things a bit. For job descriptions, it means avoiding more than just race-based language. Requiring or suggesting a candidate be a certain gender, religion, color, national origin, or sexual orientation are all no-nos too.
Note:
For the sake of inclusion, go ahead and add things like political affiliation to your list of no-nos. These aren’t covered by CRA 1964 (yet), but some state regulations cover them. Also, many companies add them to their diversity statements to show their commitment to welcoming all candidates.
5. Fair Labor Standards Act (FLSA)
The FLSA establishes the minimum wage, sets recordkeeping rules, manages overtime, and restricts child labor for employers subject to the law. It applies to companies with over $500,000 in gross annual sales and companies engaged in interstate commerce, healthcare, education, or the activity of a public agency.
A key part of the FLSA deals with overtime and exempt statuses. (Exempt: Including but not limited to administrative, executive, outside sales, or other professional workers who are not eligible to receive overtime. Non-exempt: Everyone else, eligible for overtime.)
Establishing a position’s exempt status up front in your job descriptions helps provide clarity for job seekers. So does avoiding language typically associated with exempt positions for non-exempt positions and vice versa. (Steer clear of confusion by creating a library of different custom job description templates for different job types. Datapeople can help.)
Job description compliance law
Job descriptions are a great place to convey your company’s commitment to job description compliance law and help your case should a disagreement arise. They’re also a great place to provide clarity about positions for job seekers and highlight your company’s commitment to inclusion. Again, by doing both of these things, you attract a healthy, diverse pool of qualified applicants, which makes your entire hiring process more fair and efficient.
While you aren’t legally required to provide job descriptions, you are legally required to comply with labor and employment regulations. Part of your compliance efforts is messaging, like the posters you put up for the Occupational Safety and Health Administration. Job descriptions can and should be a part of that messaging.
Easier said than done, of course – especially when you have hundreds of different hiring managers across your company posting thousands of jobs a year. That’s where Datapeople can help.
Our Smart Editor provides real-time guidance that empowers hiring managers and recruiters to write compliant (and compelling, consistent, market-calibrated) jobs. And the Compliance Report in our Actionable Insights analytics suite automatically flags job posts that omit salary information, diversity statements, or accommodation statements that may be required by law and have been proven to positively impact candidate quality and application interest.
If you want to know more about how Datapeople can support your efforts to bring standardization to talent acquisition and mitigate risk for a more fair, efficient, and successful hiring process, we’d love to show you how.
