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7 legal pitfalls to avoid when hiring seasonal employees

Special to the Legal News

Published: November 15, 2017

With the holidays quickly approaching, many businesses are busy hiring seasonal employees to keep up with the holiday rush. As with hiring any employee, well-planned hiring practices that comply with applicable employment laws can help ensure seasonal employees are well-suited for the job and the company is prepared to defend any possible claims. Here are seven actions employers can take to avoid common legal pitfalls when hiring seasonal workers:

1. Assess Whether to Classify the Worker as an “Independent Contractor”

Businesses often misclassify employees as independent contractors and, in the process, open themselves up to significant potential liability. This temptation is often especially compelling for seasonal employees. Employers should be sure to avoid designating a seasonal worker as an independent contractor without first determining that the circumstances legally justify such a classification.

2. Clarify Expectations Regarding the Duration of Employment

Although seasonal employees are generally aware that they have been hired on a temporary basis, employers should be sure to specify the limited duration of employment both at the onset and in writing. In addition, employers should require any seasonal employees to acknowledge, in writing, that they understand they are being hired for a limited duration and are “at-will” employees – meaning the employer has a legal right to terminate the employee, with or without cause, at any time.

3. Apply All the Usual Rules

Most employment laws – except the Family and Medical Leave Act (FMLA) – apply to seasonal employees. Unless employment continues beyond the holiday season, seasonal employees are ineligible for FMLA leave because they will not work the required 1,250 hours in a 12-month period. However, other employment laws such as those prohibiting employment discrimination, harassment and retaliation apply with equal force to seasonal workers. Employers should take steps to prevent and address such allegations by seasonal employees in the same manner as they would for regular employees.

4. Watch the Clock

Generally speaking, the federal Fair Labor Standards Act (FLSA) and Ohio law require employers to pay any non-exempt employees one-and-one-half times their regular rate of pay for any hours worked in excess of 40 in a given workweek. However, both federal and state law do exempt certain individuals from overtime requirements. Under the FLSA, for example, employees of certain seasonal amusement or recreational establishments, organized camps, and religious or nonprofit educational institutions are generally exempt from overtime pay. It’s important that employers review their seasonal employees’ status under federal and state law to determine whether they are exempt from paying overtime to employees.

5. Develop Telecommuting Policies and Procedures

Many retailers are hiring remote workers for customer service positions in an effort to improve productivity and efficiency. Telecommuting, however, raises unique legal issues that employers need to address with established policies and procedures before they become a liability. For example, the Occupational Safety and Health Act requires employers to provide a safe workplace to all employees – even those working from home. In addition, workers’ compensation laws still apply to telecommuters. To address these issues, employers can require telecommuters to have a designated workspace that has been inspected and approved by the company to comply with workplace safety obligations.

6. Conduct Training for Managers

Before the holiday rush, managers should understand that most rules apply with equal force to seasonal workers. In addition, they should be trained on how to address reports of harassment and discrimination for all employees, and how to respond to requests for accommodations. For example, employees may request time off during the holiday season for religious reasons. Managers should be trained to engage in a discussion with employees to determine what the religious requirements are and whether they can be accommodated.

7. Review Your Benefits Policies

Neither Ohio nor federal law require that employers provide the same benefits to seasonal workers as with regular, full-time employees. However, if a seasonal employee works more than 30 hours per week for a period longer than 120 days, the employer may be required to offer health insurance under the Affordable Care Act. Employers should review their benefits policies and health plan documents to determine if seasonal workers are eligible, as these documents can control when they provide benefits more generous than what the law requires. Failure to provide required benefits can lead to expensive consequences.

As employers prepare for the busy and hectic holiday season, taking these steps can help minimize unnecessary headaches that are often associated with hiring seasonal employees.

Melissa Dials is Of Counsel at the Cleveland office of Fisher Phillips, a national management-side labor and employment law firm.