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Seasonal employees need training on workplace policies, particularly since some workers will wind up becoming full-time employees, noted Diane Saunders, an attorney with Ogletree Deakins in Boston.
“Employers think of seasonal hires as less than full employees,” she remarked.
Some seasonal employers don’t realize that most employment laws—with the exception of the Family and Medical Leave Act (FMLA)— apply to them. (An employee has to have worked for the employer for 1,250 hours in the past 12-month period, among other requirements, to be an eligible employee under the FMLA.)
Employers commonly forget to give seasonal employees handbooks and have them sign off on them, and they forget to have them sign arbitration agreements, Saunders said. These oversights can come back to haunt employers.
“The employee should be given ample paid time to review the handbook, ask any questions about the handbook, and sign an acknowledgment sheet thereafter demonstrating receipt and time spent reviewing the handbook,” said Frank Wolf, an attorney with Fisher & Phillips in Chicago.
It’s important, too, for seasonal employees to understand they must record their time. They need to notify their manager if they work through a break and accurately record the time worked on their time sheet so they’re not unlawfully working off the clock.
“Although some workers may be seasonal, they will still be entitled to overtime wages in the event that they exceed 40 hours per week,” Wolf noted.
Workplace safety training is “a big one,” Saunders said. So is training seasonal workers not to harass co-workers or customers.
Make attendance at all employee meetings mandatory for seasonal employees, recommended Jeffrey Ruzal, an attorney with Epstein, Becker & Green in New York City.
Wolf added that seasonal employees may be the victims of discrimination, and they need to know to whom they may complain—HR or another supervisor, not just their own supervisor—who may be participating in the discrimination.
“Take the time to train or at least give them the policies,” Saunders said.
Seasonal workers aren’t the only ones who need training; managers do, too.
Managers are busy this time of year. For one thing, they may have twice as many reports as they have the rest of the year.
But they should be trained that seasonal employees’ requests for reasonable accommodation must be treated the same as other employees’ accommodation requests, Saunders said.
Some employees may request time off on Fridays, Saturdays or Sundays during the holiday season or on Hanukkah, Christmas Eve or Christmas for religious reasons, for example, she added. Employers must engage in a discussion with the employee to find out what his or her religious requirements are and whether they can be accommodated. It might mean an employee does not have to work a particular day if others can cover for him or her, she remarked, or that an employee may work only in the evening on Sunday.
“The manager needs to be aware than an employee need not use the word ‘accommodation’ to begin the interactive process” for identifying a reasonable accommodation, Wolf noted. “Accordingly, the manager must be trained in recognizing what constitutes a request for a religious or disability accommodation in the absence of some key words. If there is uncertainty as to whether an accommodation is needed, the manager should be trained to contact human resources.” Even if there is certainty that an accommodation is needed, managers might be required to contact HR to ensure the interactive process is conducted properly.
Be sure background checks of seasonal employees are thorough, as well as the I-9 process for them, Saunders reminded. “The last thing you want is to get someone who is dangerous or who can expose the company to liability,” she said.
Teach managers that seasonal staff are to be treated the same as full-time staff, Ruzal recommended. “They may not be as familiar, or perceived as dependable or loyal as the full-time staff who are more familiar to management,” he noted. But they should be treated in the same manner and provided the same working conditions.
One key exception is that seasonal workers may, as a practical matter, be discharged more swiftly than full-time workers.
Inform seasonal workers that they are probationary employees, Saunders said, noting that most seasonal employees work three months—November through January, when some stores take inventory.
The seasonal workers should know that in the case of misconduct, there may not be progressive discipline such as a written warning or performance improvement plan, but instead immediate termination.
On the other hand, if an employer decides to make a seasonal employee full time beyond the holiday season, it may be terminating someone else and presumably making a judgment about the seasonal worker’s suitability for the job, noted Tamara Devitt, an attorney with Haynes and Boone in Orange County and Silicon Valley, Calif. The employer should be sure it has carefully considered any such decision to make sure it hasn’t engaged in discrimination or retaliation, she cautioned.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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