When working in human resources (HR) and creating a new staff position for a company, there are certain legal issues and considerations that must be taken into account. Among the different legal considerations that must be made in the creation of the new position are those found in the areas of fairness, discrimination, compensation, and the legally and ethically acceptable strategies that can be employed to mitigate against potential legal claims surrounding the filing of the position.
Although a job description isn’t a legal document in and of itself, nor is it legally required for a business to define the specifics associated with a given position, documentation of the specific requirements and duties associated with a position provides specific benefits to an organization, allowing for identification of the exact duties that an employee must complete in order to hold the position and providing documented guidelines that can be used in performance reviews (Mayhew, 2017; Rosner, Frigo, O’Kelly, Psyck, & Ranger, 2016). However, if a company does decide to use job descriptions when hiring for specific positions, the job description created by an HR staff member must be in compliance with all federal and state laws concerning employment, making the process of crafting a specific position description one that can be, at times, tricky (Mayhew, 2017).
It is in the best interest of employers in the U.S. to keep up to date with all changes to federal and state laws as this not only serves to ensure that the business is not engaging in any illegal activities, but also so that the company may prevent legal action from being taken against the company, while at the same time remaining fair to all candidates (Armstrong, 2014). The Equal Employment Opportunity Commission (EEOC) is responsible for investigating all complaints regarding potential workplace discrimination, regardless of the type of discrimination being reported (EEOC, 2017). Job descriptions must be clearly worded without any discriminatory language, stating the specific requirements of the position, educational requirements, and any certification requirements, as applicable (Armstrong, 2014).
For example, a requirement to be able to lift a maximum of 50 lbs is not discriminatory, as assistive devices can be used, but stating that the candidate should be Christian and under the age of 35 would be illegal. The laws governing discrimination in employment practices in the United States include “Title VII of the Civil Rights Act of 1964 (which) prohibits discrimination in employment on the basis of race, color, sex, or ethnic origin; the Age Discrimination in Employment Act (which) prohibits discrimination against employees 50 years and older; and the Americans with Disabilities Act (which) prohibits discrimination in employment on the basis of disabilities and requires that employers reasonably accommodate individuals with disabilities who can otherwise perform a job” and it is these qualifiers that a HR representative must keep in mind when documenting job descriptions (Houseman, 1999, p. 1).
As if navigation of careful verbiage were not enough, there are certain legal considerations that must be taken into account when indicating the type of compensation to be offered for the given position. The HR representative must take into account external competitiveness, internal equity and should consider the inclusion of recognition and reward based systems in order to keep employees motivated, decreasing the likelihood of higher organizational turnover (McDonnell, 2017). The compensation package offered should be in line with comparable salaries or wages for the position within the given region of the country (McDonnell, 2017). The HR representative should also take into account the level of schooling and the amount of experience required for the position, and should adjust these areas to reflect what the company can afford, accordingly. If the company wants to pay only a minimum wage for the position, the company cannot expect to hire an individual with a Master’s degree and thirty years of experience.
By the same token, a position that requires only a high school diploma would be reasonably compensated at minimum wage, with allowances made for increases in that amount based on the qualifications of the candidate. In this manner, not only will the compensation be reasonable to the task, but the qualifications will also be in line with the task, ensuring that the wages offered for the position are equivalent to the wages offered for a similar position at another company. By the same token, however, a company can have a certain degree of variation. If the company offers additional perks or bonuses, such as paid lunches provided by the company, a slightly lower wage or salary in lieu of a smaller salary could be considered justifiable. Another example would be the provision of free childcare in the building during normal working hours, with a lower salaried rate for those who take advantage of the service, with that lower rate being at a lower cost than comparable day care rates. While a certain degree of value judgment is necessary regarding compensation strategies, the salary or wage offered should be comparable to the average rate for that position with those qualifications.
HR representatives must have knowledge of all current federal and state laws and regulations regarding hiring and they must know or have the ability to find out and keep up to date on current compensation strategies and trends. The creation of a new position or a new job description is not an easy one, but with a grasp of the generalities to look for when faced with that situation and the different considerations that must be made, the HR representative can complete the task with relative east. By keeping apprised of the different potential legal concerns associated with the creation of a job description and the identification of the compensation for the position, taking into account both fairness and legality, the HR representative can work to decrease the potential for a lawsuit that would otherwise affect the organization while at the same time finding the ideal candidate for the position.
