HR Solutions: Temporary and Seasonal Employees

Are temporary and seasonal employees eligible for unemployment when their assignments end?

People are often surprised to discover that temporary or seasonal employees may still qualify for unemployment benefits under certain circumstances.

The terms “seasonal” and “temporary” may be used interchangeably to mean employees with a short, but defined, period of employment.

Some states do exempt casual labor—for example, someone hired to wash windows for a day—from receiving unemployment benefits. Other exceptions include students employed by state and local governments as seasonal or temporary employees and temps hired to respond to emergency situations such as storms, floods or forest fires.

To determine if an employee may be eligible for unemployment benefits, it’s important to first understand base periods and the minimum-qualification requirements in the state, as well as the conditions that may disqualify someone from receiving benefits.

Generally, anyone who is no longer performing services for compensation may file an unemployment claim after he or she meets certain requirements, including earning a minimum level of compensation during the base period. Although the base period is defined by each state, it generally consists of the earliest four of the last five complete quarters of the calendar year; thus, it doesn’t include the most recent quarter of employment. Some states have alternative base periods, which allow employees who have made more recent earnings to be considered for unemployment eligibility.

The most common methods that states use to measure the minimum-earning requirement include: a flat-dollar amount, the highest quarter’s wages or a multiple of the weekly benefit amount.

When an individual doesn’t meet the minimum compensation eligibility requirement during the base period, his or her unemployment claim is disallowed. This sometimes happens if a person has not been working long enough to earn wages in at least two calendar quarters. In other words, the duration of employment affects eligibility.

In addition, claimants must be available and actively searching for work, and they must be out of work through no fault of their own. The burden of proof regarding fault is on the party who initiates the work separation.

— Elaine Bryant, SPHR-CA, GPHR

Must suspended employees be paid?

Federal and state wage and hour laws determine the answer to that question. The key factor is whether the position is classified as exempt or nonexempt under the federal Fair Labor Standards Act (FLSA).

Collective bargaining agreements, as well as employer policies and practices, can also serve as a guide.

The FLSA generally requires nonexempt employees to be paid only for the time they are physically working and places no restrictions on an employer’s ability to schedule or not schedule an employee for work. So, an hourly nonexempt employee could be suspended without pay for any amount of time.

One exception might be salaried nonexempt employees. The U.S. Department of Labor’s Field Operations Handbook states that salaried nonexempt employees must be paid their full salary, “regardless of how few the scheduled hours may be in a particular week, even though occasional disciplinary deductions for willful absence or tardiness are made. Disciplinary deductions, of course, may not cut into the minimum wage or overtime pay required by the act.”

Consult with an attorney before suspending a salaried nonexempt employee.

For exempt employees, the FLSA requires those paid on a salary basis be given their weekly salary with few exceptions.

An employer may dock an exempt employee’s pay only for:

• Penalties imposed in good faith for infractions of safety rules of major significance, including those aimed at preventing serious danger to other employees or the workplace in general, such as a smoking ban in an oil refinery.
• Unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules. Such suspensions must be imposed under a written policy that applies to all employees.

Under the “salary basis” regulation, the employer may calculate a pay deduction based on the hourly or daily equivalent of the employee’s full weekly salary or any other amount proportional to the time actually missed by the employee. A deduction from pay as a penalty for violating major safety rules may be made in any amount.

State laws vary. For example, Illinois allows for daily suspensions for major safety violations, but only permits a week of unpaid disciplinary suspension for workplace conduct violations.

—Ruhal Dooley, SPHR-CA