Employers in a wide variety of industries are looking to ramp up their hiring efforts as the holiday season begins. Indeed, many businesses will rely on temporary workers to meet the surge in demand that holiday shopping brings – making it essential for you to understand and avoid the legal pitfalls associated with seasonal employment. . Here are 10 practical tips to help you stay compliant as you prepare for the holiday rush.
1. Understand the definition of “seasonal employee”
First, you need to determine if your temporary employees are really “seasonal”. According to the IRS, an employee is considered seasonal if the period of employment is expected to be six months or less and the need for the position generally begins and ends around the same time each year, such as November through January for vacations.
2. Ensure compliance with wage and hour laws
Federal Fair Labor Standards Act (FLSA) and state laws generally require that you pay seasonal employees 1.5 times their regular rate of pay for all hours worked in excess of 40 hours during a given work week. However, some people are exempt from overtime requirements under federal and state laws. Under the RSA, for example, employees of certain seasonal amusement or recreation establishments, organized camps, and nonprofit or religious educational institutions are generally exempt from overtime pay. In addition, the FLSA provides a sub-minimum wage for miners in certain circumstances. It is important that you review the status of your seasonal employees under federal and state laws to determine if overtime exemptions apply.
3. Verify Employment Authorization
Employers should treat seasonal staff the same way they treat regular employees by verifying that they are legally authorized to work in the United States. Employers must complete the Employment Eligibility Verification Form (Form I-9), even for seasonal employees. If you are hiring remote workers this season, you should note that due to ongoing COVID-19 concerns, employers will have the ability to remotely review employment documents for I-9 purposes under certain circumstances. until July 2023.
4. Avoid misclassification issues
Companies often incorrectly classify employees as independent contractors and in doing so expose themselves to significant potential liability. This temptation can be particularly strong with seasonal employees. You should avoid designating a seasonal worker as an independent contractor without first determining that the circumstances legally warrant such classification. You should also note that some states, such as California and Massachusetts, have stricter rules than federal law when it comes to classifying independent contractors.
5. Review potential paid vacation allowances
Unless employment continues beyond the vacation, seasonal employees are not eligible for federal leave under the Family and Medical Leave Act (FMLA) as they will not complete the 1,250 hours of work required over a 12 month period. However, some state and local jurisdictions require employers to provide paid time off — such as sick leave — to employees who work for shorter durations. Seasonal employees may or may not be eligible for these vacation accruals, so it’s important to check the laws in your jurisdiction.
6. Note restrictions when employing minors
Federal and state laws limit the time of day and number of hours miners can work, the type of work miners can do, and the equipment they can use. The FLSA governs child labor but allows states to pass more restrictive child labor laws, so you should also be aware of any local restrictions. In situations where federal law and state law differ, you should follow the law that offers the most protection to the minor. For more information, see our employer guide on hosting minors, interns and volunteers.
7. Be aware of your obligations – and any new obligations based on employer size
Many employment laws, such as those prohibiting discrimination, harassment and retaliation in employment, apply with equal force to regular and seasonal workers. Therefore, you should take steps to prevent and deal with allegations from seasonal employees in the same way as regular employees. Do not skimp on the integration of seasonal workers and ensure that they receive the same EEO prevention training that you offer throughout the year (how to report harassment or discrimination, understand your rules of professionalism, etc.) .
You should also recognize that most federal and state employment laws only apply to businesses with a certain number of employees. Thus, your seasonal workforce could place your business under additional laws. Particularly if you are a small business, you need to be careful about whether hiring seasonal employees will increase your total number of employees and trigger additional legal obligations.
8. Set clear expectations
Although seasonal employees generally understand that they have been hired on a temporary basis, you should be sure to specify the limited duration of employment both verbally at the outset and in writing. In addition, you must require any seasonal employee to acknowledge, in writing, that they understand that they are hired for a limited time and as an “at will” employee, which means that you and the employee have the legal right to terminate the employment relationship, with or without cause, at any time.
9. Protect confidential information
The protection of confidential information should not be overlooked when hiring seasonal employees. If the seasonal employee has access to confidential or proprietary information, an employer may consider entering into a nondisclosure or confidentiality agreement.
ten. train supervisors
Make sure supervisors know that most rules that apply to regular workers also apply to seasonal workers with equal force. In addition, they should be trained on how to properly handle reports of harassment and discrimination and how to respond to requests for accommodation. For example, if an employee requests time off during the holiday season for religious reasons, managers should be trained to engage in a discussion with the employee to determine exactly what the religious requirements are and whether they can be met.
Conclusion
As always, employers should ensure they hire the best seasonal candidates, enforce and follow internal policies, and closely monitor their pay practices to ensure they are following state and federal laws for all employees. Employers who carefully assess their seasonal hiring practices can go a long way in protecting themselves from liability.
