As 2013 comes to an end, we will consider a number of issues that employers might be facing at the end of the year. In this blog series, we will cover topics such as seasonal hiring, religious discrimination claims stemming from the holidays, liability issues arising from corporate holiday parties, and the tax implications of holiday gifts. The first post in this series covers several employment issues about which employers must be aware if they plan to hire seasonal workers.
This year, Black Friday will start on Thursday in many stores, and Cyber Monday is turning into a three-day cyber weekend. In preparation for the holiday season, many retailers are beefing up their employment ranks by hiring a cadre of short-term workers.
To make this a merry experience, businesses should plan carefully and not cut corners when hiring and onboarding for the holidays. In addition, even employers that are experienced in hiring seasonal workers should be wary of several new issues to consider this year as a result of the implementation of the Affordable Care Act. (We will cover this topic in the next post in this multi-part series.)
Employment Eligibility and anti-Discrimination Laws
Employers should remember that applicants for seasonal positions are subject to the same employment eligibility verification requirements as non-seasonal workers. In addition, seasonal workers receive the same protections against discrimination, harassment, and retaliation as non-seasonal workers under most federal, state, and local anti-discrimination laws. Seasonal workers also can create the same potential liabilities for their employers as their non-seasonal peers if they engage in discrimination, harassment, or other inappropriate conduct.
Wage & Hour Issues
Just as with non-seasonal employees, setting proper expectations and effectively documenting communications with seasonal workers is a must. Most seasonal jobs are not exempt from overtime under the federal Fair Labor Standards Act (FLSA) or state wage and hour laws. Lawsuits brought under federal and state law are extremely popular right now among plaintiffs’ lawyers, particularly those alleging that employees were pressured to work through lunch breaks or before or after their shifts without being paid for that time.
Given these trends, employers need to have strong policies and procedures with respect to clocking in and clocking out and with respect to prohibiting off-the-clock work. Notably, many retailers remain open for extended hours during the holidays, so employers should clearly communicate their expectations regarding work schedules—and not just the number of hours to be worked—to all employees. Employers also need to plan work schedules well in order to avoid incurring unanticipated overtime costs.
Students & Minors
Many people who apply for seasonal employment are students. Particularly if this is a first job, these individuals may not understand the gravity of properly clocking in and clocking out, or they may be willing to work extra hours in order to make a good impression. So emphasizing wage and hour compliance with students and their supervisors is especially important.
Employers also must ensure that they are complying with all applicable federal and state child labor laws. These include laws requiring students to have work permits, laws that place limits on the number of hours or how late in the evening minors may work, and laws that mandate breaks for younger workers.
Employers want to be sure that they are telling all seasonal hires in writing when their seasonal employment is expected to end. , Most seasonal employment is intended to be at will, and employers also must be sure to communicate that to seasonal hires clearly and in writing. It is always wise to consult with legal counsel regarding the terminology that should be used in offer letters or other communications to new hires to avoid giving the impression that at-will employees, whether seasonal or non-seasonal, are “permanent” or are employed for a “definite term.”
Minimum Wage Laws
In many states, new employment laws and increases in the minimum wage become effective on January 1. While employers should be planning now for those changes regardless of whether they have seasonal employees, they also need to think about how those laws will impact seasonal workers who stay on past December 31.
Employers need to be sure that they have the people and the record-keeping systems in place to handle a sudden influx of new employees. Maintaining accurate records is important not only with respect to immediate issues such as payroll, but also down the road. Below are some examples.
Seasonal employment counts toward the 12-month portion of the eligibility requirements for coverage under the federal Family and Medical Leave Act (FMLA). So employers’ record-keeping systems must be able to track and aggregate non-continuous periods of employment.
Seasonal employees may become witnesses in future lawsuits, so it is valuable to have accurate records of when and where they were on duty and of how to reach them after their seasonal employment ends.
Seasonal employment sometimes continues beyond the holidays and can turn into a non-seasonal relationship. Employers want to be sure that any such change in status does not slip through the cracks. Thus, employers should have a quality system in place that properly codes and updates any information that affects anniversary dates, review dates, step pay increases, etc.
The onboarding process for seasonal employees is just as important, and arguably more important, than the onboarding process for year-round employees. Consider the examples that follow.
The holiday season is a busy time, which means managers have fewer opportunities to provide on-the-job training to seasonal workers and to integrate them into the company’s culture.
Holiday shoppers tend to be stressed and impatient. So seasonal employees need to be able to hit the ground running and provide quality customer service from the start of their employment, even if they lack prior experience working for a particular employer.
The same rules of conduct apply to seasonal workers as to non-seasonal workers, so seasonal workers need to be trained immediately as to what these rules are.
Non-seasonal workers also should be trained regarding the appropriate treatment of seasonal workers.
Some employers choose to apply a more rigid standard of attendance to seasonal workers than they apply to non-seasonal workers. Employers might do this because of the intended short-term nature of the relationship and the added importance of having people at work and on time for the holiday retail rush. Employers that adopt a more rigid seasonal attendance policy should emphasize the policy during the onboarding process and communicate it in writing to seasonal hires.
Some workers return to the same employer every holiday season and, because of their prior experience, may think that they already know all of the employer’s policies and procedures. So if any policies or procedures have changed since the last holiday season, it will be important to make these repeat seasonal workers aware of the changes.
Significant discounts that retailers offer during seasonal sales can result in large crowds that have caused trampling injuries to both workers and customers. In anticipation of this problem, the U.S. Department of Labor (DOL) recently issued a press release on crowd management issues including a link to the fact sheet issued by the Occupational Safety and Health Administration on crowd safety guidelines for retailers. As an initial matter, all employers should develop and implement a crowd management plan. In addition, employers should train both seasonal hires and year-round employees who will be working during holiday sales on this plan.
Part two of our holiday series, “Avoiding Mistletoe Mishaps, Part II: Do I Have To Offer Health Care Coverage To My Seasonal Employees?” will cover employers’ requirements to provide health care coverage to seasonal workers.
Steve Pockrass is a shareholder in the Indianapolis office of Ogletree Deakins.
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