11 Compliance Tips for Working with Seasonal Employees During the Holidays

 

Allen Smith, J.D. By Allen Smith, J.D. November 2, 2018
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​The holidays are busy, but complying with employment laws shouldn't get lost in the shuffle. Here are 11 key compliance areas to keep in mind when hiring and working with seasonal employees during the holidays.

1. Remember that most employment laws apply to all workers, even if employment is brief. The only major federal law that usually does not apply to seasonal workers because of their short duration of employment is the Family and Medical Leave Act (FMLA). To be an eligible employee under the FMLA, an employee must work for a covered employer, must work for at least 12 months (which do not have to be consecutive), must have worked at least 1,250 hours during the 12-month period preceding the leave and must have worked at a location where the employer has at least 50 employees within a 75-mile radius. "Remember, in general, employment within seven years is counted when determining whether the 12 months of employment have been reached," said Kelly Hughes, an attorney with Ogletree Deakins in Charlotte, N.C.

2. Reasonably accommodate individuals' religious beliefs. Asking if someone can work on a particular day of the week or set of dates during the holiday season makes the applicant feel compelled to disclose his or her religious affiliation, said Stephanie Suarez, an attorney with Meltzer Lippe in Mineola, N.Y. "Employers should avoid these discussions whenever possible." Employers are prohibited from refusing to hire someone because he or she may need a reasonable accommodation, such as a schedule change to attend religious services, unless the accommodation would cause an undue hardship, according to the Equal Employment Opportunity Commission. Be aware that undue hardship is a hard standard to meet, and ensuing litigation is possible if someone isn't hired because that person can't work on a particular day.

"A mere assumption that many more people with the same religious practices as the individual being accommodated may also seek accommodation is not evidence of undue hardship," according to the commission. Accommodations often can be found, such as employees' voluntarily switching schedules, but this may be a stretch on certain days of the holiday season.

Violation of a seniority system or collective bargaining agreement would constitute an undue hardship. Applicants might be informed in extremely limited instances, for example, that senior employees would have the right to take Christmas Day off before they do if a seniority system or collective bargaining agreement to this effect is in place. But even that approach would have some legal risk, as it may encourage applicants to disclose their religious affiliation at the interview stage, and, if they weren't hired, subsequently allege that the hiring decision was unlawfully based on religion.

3. Reasonably accommodate all employees with disabilities, including seasonal workers. Unlike the FMLA, the Americans with Disabilities Act (ADA) applies from the first day of employment and doesn't require that employees work a minimum number of hours to be covered. To be covered by the ADA, individuals must be qualified, though, meaning that they can perform the essential functions of the job with or without a reasonable accommodation. So, while leave under the FMLA wouldn't be available for seasonal employees, it might be available to them as a reasonable accommodation for a definite period under the ADA.

4. When determining overtime pay, include nondiscretionary holiday bonuses, but exclude discretionary bonuses. A one-time and unannounced turkey giveaway could most likely be considered discretionary, noted Carrie Gonell, an attorney with Morgan Lewis in Costa Mesa, Calif. Nondiscretionary bonuses are announced in advance, create an incentive for employees and are intended as retention tools. If bonuses are owed when an employee works through a particular date, the bonus must be included in the worker's regular rate for overtime purposes, noted Brendan Sweeney, an attorney with Jackson Lewis in Melville, N.Y.

5. Train seasonal employees on the company's anti-harassment policies. "While this may seem like a significant undertaking, training is mandatory in some states, and failing to train could lead to significant consequences for the employer," Sweeney said. In the wake of the #MeToo movement and the recently strengthened anti-sexual-harassment laws in such places as California, Delaware, New York state and New York City, behaviors that employees may have tolerated in the past are now less likely to be overlooked, according to Suarez.

[SHRM members-only resource: Workplace Harassment Resources]  

6. Comply with predictive scheduling laws that require businesses to provide workers with advance notice of their schedules, or face penalties. Such laws exist in Oregon, New York City, San Francisco, Seattle and Washington, D.C. The laws commonly include burdensome record-keeping requirements and prohibitions on requiring an employee to find a replacement for a scheduled shift if he or she is unable to work. It's difficult to comply with these laws during the holidays because of the changing staffing needs, said Diane Saunders, an attorney with Ogletree Deakins in Boston.

7. Don't make managers perform so many nonexempt duties that their exempt status is put at risk. Otherwise, employers could face claims for unpaid overtime, cautioned Ann Knuckles Mahoney, an attorney with Epstein Becker Green in Nashville, Tenn.

8. Make sure nonexempt employees keep accurate time records. This is especially important during the holidays, when nonexempt employees often work more overtime. "Ensure nonexempt employees do not perform any work off the clock," Suarez said. Also, seasonal workers must take any meal and rest breaks required by state law.

9. Comply with state and local bans on asking applicants about their past pay. In some parts of the country, asking is prohibited. Laws with bans on salary inquiries are in place in California, Delaware, Massachusetts, Oregon, Puerto Rico, New York City and San Francisco.

10. Inform employees of policies through a handbook.

11. Comply with final-pay requirements. State rules vary on when the last check must be paid and whether vacation time must be paid.

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