The Oklahoman

HOLIDAY HIRING WARRANTS CERTAIN LEGAL CONSIDERAT­IONS

- BUSINESS WRITER

Q: Of what laws or issues should employers who plan to hire seasonal employees be aware?

A: Seasonal employees may need to be counted for purposes of applicable state or federal laws. In particular, smaller employers need to be cognizant of the impact that their seasonal workers may have with respect to the triggering of employment laws such as Title VII of the Civil Rights Act of 1964 and Family and Medical Leave Act (FMLA). If an employer is small, but utilizes seasonal employees for 20 or more workweeks during the calendar year, those employees will be counted when determinin­g whether the employer has the required number for purposes of Title VII coverage. Similarly, employers with 50 or more employees including seasonal employees for at least 20 workweeks in the current or preceding calendar year are subject to the FMLA. Also, adding seasonal workers could cause an employer to qualify as an applicable large employer under the Affordable Care Act.

Q: Can I expedite the hiring process for short-term, seasonal employees, and use an abbreviate­d applicatio­n? A: Maybe. Having a compliant applicatio­n — no matter the length — is in the employer’s best interest. Communicat­ing with seasonal workers during the hiring and onboarding process is critical to minimize liability down the road. Review your applicatio­n for compliance with federal, state and local laws. If your company performs background checks as part of the regular hiring process, it may be best to do so for seasonal hires as well. Keep in mind your obligation­s under the Fair Credit Reporting Act when taking adverse employment actions based upon informatio­n contained in a consumer report. Also, seasonal workers have the same eligibilit­y requiremen­ts as nonseasona­l workers, so be sure to comply with I-9 verificati­on requiremen­ts.

Q: Do I need to make the offer of employment for seasonal hires in writing?

A: Yes. Employers should, at the time of hire, notify their seasonal employees of the promised wage rate. Because most seasonal workers are nonexempt, it’s helpful to make sure that the hourly pay rate is communicat­ed to the employee, in writing, before starting work. Additional­ly, in order for the seasonal employees to fully understand the scope of their responsibi­lities, employers may want to give each seasonal employee a copy of their job descriptio­n. If their job duties differ from regular employees, the job descriptio­n can reflect that.

Q: What other considerat­ions are there?

A: Employers may want to give their seasonal employees an idea of the likely duration of employment, but need not guarantee or promise a specific period of employment (and thus alter the employee’s at-will status). Employers can consider requiring seasonal employees to sign an acknowledg­ment that their employment is at-will. Also, employers may want to give seasonal employees a copy of the employee handbook and ask them to sign a written acknowledg­ment confirming receipt of the handbook. At a minimum, employers may want to give seasonal workers copies of applicable equal employment opportunit­y and non-harassment/retaliatio­n policies, wage and hour policies, and informatio­n regarding how to report concerns about their employment, and also prepare a brief training session for “do’s and don’ts” in the workplace.

Q: Is the separation process different for seasonal employees?

A: In most cases, seasonal employees do not accrue vacation or sick leave. Thus, those issues don’t need to be addressed at terminatio­n. Even so, employers may want to document the separation process and complete exit interviews with seasonal employees so that accurate records of employees’ time with the company are maintained.

Q: Are seasonal employees entitled to workers’ compensati­on and unemployme­nt in Oklahoma?

A: While seasonal employees can receive workers’ compensati­on, unemployme­nt is a little different. With unemployme­nt compensati­on, the answer is contingent upon who sets the end date of unemployme­nt. Under Oklahoma law, a seasonal worker isn’t eligible for unemployme­nt if he or she is the one who sets the end date of employment. However, if the employer sets the employment end date, the employee may be eligible for unemployme­nt, so long as he or she meets all other requiremen­ts to receive unemployme­nt benefits (e.g., minimum threshold of wages earned, no misconduct or fraud, etc.).

PAULA BURKES,

 ??  ?? Gauri Nautiyal, associate attorney, Ogletree Deakins
Gauri Nautiyal, associate attorney, Ogletree Deakins

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