Seasonal Employees Minimizing the Legal Risks

By Tiffany Miller

Nov. 11, 2009

For many employers, the use of seasonal employees is a must during the holiday season. As employers hire such workers to beef up their staffs in anticipation of a holiday shopping rush, it is important to keep in mind that hiring seasonal employees—as with hiring any employee—has its legal risks. To minimize some of the issues associated with hiring seasonal employees, employers may want to consider the measures outlined below.

Avoid litigation land mines: It is critical that employers remember that federal, state and local laws prohibiting employment discrimination, harassment and retaliation apply with equal force to seasonal employees. Accordingly, employers should take the same care in preventing and addressing allegations of discrimination, harassment and retaliation against seasonal employees as they do with regular employees. For example, employers should educate seasonal employees regarding company anti-discrimination and anti-harassment policies and ensure that employees acknowledge—preferably in writing—that they have read and understand these policies. It is also important that employers train supervisors and managers to respond to any complaints of discrimination or harassment made by seasonal employees in the same manner that they would for regular employees.

Make it clear: Although seasonal employees are generally aware that they have been hired only temporarily, it is important that employers specify the limited duration of employment at the outset. Employers should consider requiring seasonal employees to acknowledge, in writing, that they understand they were hired for a limited duration. Employers should also make it clear to seasonal employees that they are “at-will” employees: Their employment may be terminated with or without cause at any time (even prior to the end of the holiday season).

Provide proper paperwork: Seasonal employees must complete all paperwork required for employees, pursuant to federal or state law. For example, all seasonal employees must complete federal I-9 forms as proof of their eligibility to work in the United States. Additionally, employers should ensure that seasonal employees under the age of majority, which is 18 in most states, have acquired the permits that authorize them to work.

Count seasonal workers: Smaller businesses may want to assess whether the addition of seasonal employees will push them over the jurisdictional number of employees for some federal and state laws. For example, the Family and Medical Leave Act, which requires employers to provide up to 12 weeks leave to eligible employees under certain circumstances, applies to employers that employ 50 or more individuals during each of 20 or more calendar workweeks in the current or preceding calendar year. Under the FMLA, seasonal employees count toward the 50-employee requirement.

Keep track of hours and overtime: It is especially important for employers to make sure that all state and federal wage-and-hour laws are diligently followed during the holiday season. This includes ensuring that employees take any required meal times and other breaks, and that overtime is accurately recorded and paid. Also, employers must also ensure that they comply with all wage-and-hour laws applicable to minor employees.

Keep it secret: The protection of confidential information should not be overlooked when hiring seasonal employees. If seasonal employees will have access to the company’s confidential or proprietary information, an employer may want to consider requiring a nondisclosure/confidentiality agreement.

Seasonal employers provide a great benefit to employers by allowing them to deal effectively with variations in their workforce needs. To maximize this benefit and avoid some of the legal risks associated with hiring seasonal employees, employers should take the precautionary measures outlined above and otherwise ensure that they are in compliance with relevant employment laws. Employers that are unsure of their legal obligations with respect to seasonal and/or other employees should consult with an attorney.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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