The holidays are around the corner, and employers who are considering hiring temporary workers for this holiday season should consider the following issues that often land companies in trouble when it comes to seasonal hiring:
- Employment Applications. Employers should remember that applicants for seasonal positions are subject to the same employment eligibility verification requirements and anti-discrimination rules as non-seasonal workers. Therefore, employers should follow the same application process with the seasonal workers as with the permanent ones.
- Employment Offers. Businesses should clearly inform all seasonal employees in writing that their employment is temporary. Creating an impression that temporary employees are hired for a definite term may lead to problems at termination.
- Training. Seasonal workers can create the same potential liabilities for their employers as their non-seasonal peers if they engage in discrimination, harassment, or other inappropriate conduct. Therefore, skimping on training for seasonal employees is not a good idea. While it may save some money in the short term, it can end up costing a lot more in legal fees down the road.
- Eligibility Verification. Employers should verify that employees are legally permitted to work in the U.S. just as they do with the permanent employees by obtaining proper Form I-9 records.
- Minor Employees. Employers should verify and comply with the limitations on employment of minors, such as work permits for students, limits on the number of hours or how late they can work, and break requirements for minor workers.
- Minimum Wage/Overtime Issues. Most seasonal jobs are not exempt from overtime under the federal Fair Labor Standards Act (FLSA) or state wage and hour laws. Employers should take care to pay minimum wage and overtime to seasonal employees. Overtime lawsuits 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.
- Employee /Independent Contractor Classification. A lot of companies wrongly assume that because an assignment is temporary, they can treat a worker as an independent contractor. That assumption is often wrong. When in doubt on how to classify seasonal workers, employers should consult with an attorney, as this is a complicated area of the law.
- Criminal Background Checks. Employers should conduct those checks, follow the proper procedures under the Federal Credit Reporting Act (FCRA), and use forms that contain proper authorization language from the potential hires.
- Unpaid Interns. In most circumstances, interns must be paid at least minimum wage. When in doubt, employers should consult with an attorney, as the test for determining whether a certain position can qualify for unpaid internship is complicated.
- Health Benefits. Employers should determine in advance of hiring, whether hiring seasonal workers will convert a company into a large employer under the Affordable Care Act (ACA) or, if a company is already a large employer, whether it will be required to cover the seasonal employees’ health benefits.
- Record-Keeping. Too often companies who keep thorough records for permanent employees, fail to do so for the seasonal hires. Those records, however, may play an important role if a litigation arises out of seasonal employment or if a seasonal employee later becomes a permanent one and claims Family & Medical Leave Act (FMLA) benefits. Thus, keeping good records for seasonal employees is as important as for permanent ones.
Leiza Dolghih represents both COMPANIES and EMPLOYEES in employment litigation and arbitration proceedings. If you are facing an actual or a potential employment dispute, contact Ms. Dolghih for a confidential consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.