HOLIDAY HIRING WARRANTS CERTAIN LEGAL CONSIDERATIONS
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,