With the holidays quickly approaching, many businesses are busy hiring seasonal employees to keep up with the holiday rush. As with hiring any employee, well-planned hiring practices can help ensure seasonal employees are well-suited for the job.
Have you noticed the increased traffic in downtown New Bern lately? Having a harder time finding a parking spot? It’s with good reason: Thanksgiving is just around the corner and Christmas is speeding toward us at a fierce pace.
This is also the time of year when retailers, restaurants, hotels, and more hire part-time workers for the bump in consumer activity the holidays bring. These employees can simply be individuals seeking a job to supplement their current income or someone hoping to turn a temporary position into a full-time job.
Unfortunately, seasonal employment can often raise complex legal issues. Most often, these relate to things like scheduling and severance obligations. While a part-time job over the holidays is often seen as “casual,” the reality is that a legal relationship is being created. Seasonal employees are still employees—entitled to the protections afforded by employment standards legislation, health, and safety legislation and common law. It’s important that both employers and employees understand their rights and obligations.
Seasonal Employees: What to Consider
Melissa Dials, an attorney with a management side-labor and employment law firm, recently offered Crain’s Cleveland Business a few actions you can take to avoid the most common legal pitfalls when hiring seasonal workers:
What forms are needed?
Seasonal workers are just like other employees regarding new hire forms and procedures. Each employee must complete a W-4 form designating amounts to be withheld for federal income taxes, and you must verify work eligibility using Form I-9. And don’t forget state income tax withholding and other forms.
Most seasonal workers don’t receive benefits, but it’s a good idea to provide these employees with a copy of your company’s employee handbook or policies and procedures manual.
Should you classify the worker as an “independent contractor?”
Businesses often misclassify employees as independent contractors and, in the process, open themselves up to potential liability. Employers should be sure to avoid designating a seasonal worker as an independent contractor without first determining that the circumstances legally justify such a classification.
You’ll need to clarify expectations regarding the duration of employment.
Although seasonal employees are generally aware they’ve been hired on a temporary basis, employers should be sure to specify the limited duration of employment both at the onset and in writing. In addition, employers should require any seasonal employees to acknowledge, in writing, they understand they are being hired for a limited duration and are “at-will” employees—meaning the employer has a legal right to terminate the employee, with or without cause, at any time.
What rules apply?
Most employment laws, except the Family and Medical Leave Act (FMLA), apply to seasonal employees. Unless employment continues beyond the holiday season, seasonal employees are ineligible for FMLA leave because they will not work the required 1,250 hours in a 12-month period. However, other employment laws such as those prohibiting employment discrimination, harassment and retaliation apply with equal force to seasonal workers. Employers should take steps to prevent and address such allegations by seasonal employees in the same manner as they would for regular employees.
Watch the clock.
The federal Fair Labor Standards Act (FLSA) requires employers to pay any non-exempt employees one-and-one-half times their regular rate of pay for any hours worked in excess of 40 in a given workweek. However, federal law does exempt certain individuals from overtime requirements. Under the FLSA, for example, employees of certain seasonal amusement or recreational establishments, organized camps, and religious or non-profit educational institutions are generally exempt from overtime pay. It’s important that employers review their seasonal employees’ status under federal and state law to determine whether they are exempt from paying overtime to employees.
Develop telecommuting policies and procedures.
Many retailers are hiring remote workers for customer service positions to improve productivity and efficiency. Telecommuting, however, raises unique legal issues that employers need to address with established policies and procedures before they become a liability. For example, the Occupational Safety and Health Act (OSHA) requires employers provide a safe workplace to all employees—even those working from home. In addition, workers’ compensation laws still apply to telecommuters. To address these issues, employers can require telecommuters to have a designated workspace that has been inspected and approved by the company to comply with workplace safety obligations.
Conduct training for managers.
Before the holiday rush, managers should understand that most rules apply with equal force to seasonal workers. In addition, they should be trained on how to address reports of harassment and discrimination for all employees, and how to respond to requests for accommodations. For example, employees may request time off during the holiday season for religious reasons. Managers should be trained to engage in a discussion with employees to determine what the religious requirements are and whether they can be accommodated.
Review benefits policies.
Federal law does not require employers to provide the same benefits to seasonal workers as they do regular, full-time employees. However, if a seasonal employee works more than 30 hours per week for a period longer than 120 days, the employer may be required to offer health insurance under the Affordable Care Act (ACA). Employers should review their benefits policies and health plan documents to determine if seasonal workers are eligible, as these documents can control when they provide benefits more generous than what the law requires. Failure to provide required benefits can lead to expensive consequences.
Following these guidelines may seem unnecessary and time consuming when you’re under pressure to quickly hire help during the hectic holiday season, but failure to follow such simple steps may lead to unexpected expenses and headaches you definitely don’t want to encounter.
Making hiring decisions for your small business can be a daunting task. It’s important that you’re familiar with North Carolina law, so let Oliver & Cheek, PLLC guide and assist you. For more information, call (252) 633-1930 or visit www.olivercheek.com.
(Sources: U.S. Small Business Administration; North Carolina Department of Labor; Crain’s Cleveland Business; The Globe and Mail, Inc.; Business News Daily; The Balance; and Retail Minded.)