Avoiding Legal Pitfalls with Seasonal Workers

​While the holiday season is a blur of activity, it will pay off later to take time now to make sure you are communicating well with seasonal workers so that they understand all aspects of their temporary employment.

First, be mindful about not paying workers below the minimum wage or triggering overtime requirements. Under the federal Fair Labor Standards Act, certain seasonal employees at amusement parks, recreational establishments, organized camps, and religious or nonprofit educational institutions are exempt from overtime pay. That includes stadiums, ice skating rinks and zoos. Be sure they know that.

"It's so important to button up your policies and pay practices" because a lot of class-action lawsuits involve short-term and seasonal employees, said Ryan Crosner, an attorney with Ogletree Deakins in Los Angeles. "If you're having someone come in for a very short time, those are the folks a lot of times that bring wage and hour class actions."

You also need to consider your company size and the threshold for complying with state and federal laws. A few extra seasonal employees "can put you over the numbers, if you're a smaller employer," said Courtney Leyes, an attorney with Fisher Phillips in Memphis, Tenn.

That means you may have to start complying with the federal Family and Medical Leave Act, the federal Affordable Care Act or similar state laws. In some states, seasonal employees might be eligible for state-mandated paid sick leave.

The Internal Revenue Service defines a seasonal employee as one "whose customary annual employment is less than seven months" and whose period of employment begins at approximately the same time each year. Seasonal employees are subject to the same tax withholding rules that apply to other employees.

Onboarding

Leyes emphasized that companies shouldn't rush through the onboarding process for their seasonal workers, even though it's a busy time of year. It's especially important to train these employees on how to report discrimination and harassment.

"When the holidays are going on, sometimes employees act a little crazy. You want to make sure your supervisors are trained on your policies," especially for handling discrimination and harassment complaints, Leyes said.

Always take these complaints seriously, even when they come from a seasonal employee. "The employer's obligation under the law is the same" whether it's a seasonal employee or a permanent employee, Leyes noted.

To avoid wage and hour disputes, thoroughly train your seasonal workers on your time-keeping policies and procedures so they know what to do if they forget to clock in. "Don't work off the clock. That's prohibited," Leyes said.

You shouldn't assume that seasonal workers can be classified as independent contractors. "Employers should be really careful before they identify these seasonal employees as independent contractors, because there are some states that have more stringent laws than the federal [test]," Leyes said. "That's an issue that I've run across with my own clients."

At-Will Status

Taking certain steps can help you preserve the at-will status of your seasonal employees. You can cite the at-will status in their offer letter, employment contract and employee handbook.

Make sure they understand it's a seasonal job, and "don't make promises that [they] are definitely guaranteed employment through the end of Dec. 31," Leyes recommended. That's because, if conditions change, you might want to reduce shifts or fire some seasonal workers who didn't perform well.

Employing Minors

A lot of seasonal workers are under age 18, which means employers need to be diligent about complying with state laws regarding their hours and other restrictions.

Depending on the state, "there are various constrictions on scheduling, pay, what they can do," Leyes said. "Especially if you're hiring minors, make sure you're getting the right information on file," such as parental permission and date of birth.