There are two things during the holiday season that can switch HR’s cries of joy from Ho Ho Ho to Oh No No: hiring policies and employment mandates for seasonal workers.
Hiring the right applicants to help your company handle the anticipated bumps in sales and overflow of customers merits the same attention as hiring full-time, permanent employees. And once seasonal workers are on board, don’t forget that the rules of the workplace apply to them, too — as the U.S. Department of Labor is happy to remind employers.
Front-line managers must be trained in how to work with, engage, discipline and, if necessary, terminate seasonal workers.
Know employment status
Seasonal workers’ short time on your payroll makes no difference in their employment status, Helene Wasserman, a shareholder and co-chair in the Litigation and Trials Practice Group at Littler Mendelson told HR Dive.
And this uptick in hiring is a good time to review your job applications. Kelly Hughes, co-chair of Ogletree Deakins’ Retail Industry Group, says employer must make sure these forms comply with current federal, state and local laws. Many states have recently enacted new legislation, she said, like “ban the box” laws that limit references to past convictions on application forms.
Have the right work papers
Wasserman said the same employment documents for permanent workers apply to seasonal workers. Make sure all W-4s are completed and that I-9 forms are correctly filled out. (And if you're hiring someone for just a few days, you need work eligibility documentation for I-9s right away, as opposed to in the usual three days.)
U.S. Immigration and Customs Enforcement (ICE) recently announced plans to quadruple worksite inspections. This more aggressive enforcement means completing I-9 forms must be an air-tight process. Some experts recommend conducting a self-audit of your existing I-9s, and of your I-9 process. For example, it's crucial to make sure you’re using the most recent form.
Retail often attracts young job applicants, who might be high school students looking to earn some cash for the holidays. Wasserman said that because states have various laws for hiring minors, employers must know what the mandates are in their states and municipalities.
Finally, are background checks necessary for seasonal workers? Wasserman said that it depends on the type of business you operate. You’ll probably want to clear cash handlers or anyone who might be able to access proprietary information.
Pay correctly
Most seasonal hires are hourly employees and therefore nonexempt. And the same wage and hour laws that apply to your permanent employees also apply to your seasonal hires, Wasserman said. If they work beyond 40 hours in a week, you must pay them 1.5 times their base pay for every additional hour worked. It's important to check state and local laws here, too. California, for example, has daily overtime requirements.
And avoid being lax about tracking seasonal workers’ time. Track both regular hours and overtime carefully, including time out for meal and rest breaks.
If your ads for seasonal workers clearly state that your need for help is temporary, applicants shouldn’t expect to stay on indefinitely. Hughes and Wasserman agree that you need to inform seasonal workers in writing that their jobs are temporary. “Tell them there will be an end date to their employment, but that you can’t be specific about when that will be,” Hughes said.
Keep benefits compliant
The short duration of their employment often makes seasonal workers ineligible for vacation time, medical leave and paid leave. But that's not always the case, so a review of local leave policies is wise.
“The ‘localization’ of employment laws at state and municipal levels has continued in 2017, further complicating compliance for multi-state employers,” Hughes said.
And while employers don’t always think of the Americans with Disabilities Act when it comes to short-term employees, it's protections can certainly kick in if a seasonal worker has an impairment, Hughes said.
It's also important to note that some seasonal workers might be eligible for unemployment insurance, which is run by the states. Workers’ compensation, another state-run program, usually covers all workers, depending on the industry, Hughes added.
Keep liability front of mind
Yes, seasonal workers do sue employers, often in disputes over their termination deadlines.
Among employers’ biggest problems with seasonal workers is failing to instruct them in workplace policies, safety and how to voice their concerns with HR, Hughes said. Without this instruction, seasonal workers may bypass HR and take their complaints to the U.S. Equal Employment Opportunity Commission or the Occupational Safety and Health Administration, for example.
This means giving seasonal workers employee handbooks on workplace policies, just as you would if they were permanent workers.
Few employers rely on employment agencies for seasonal workers, Wasserman said, but if you do, make sure each worker is eligible to work and being paid properly. If the agent fails to complete the necessary employment papers on each worker, your agency could face “joint liability” for not properly vetting them.
Document performance
Lastly, be sure to document all behavior. If a dispute between your organization and a worker arises, you’ll have a written record of incidents. It also can be useful if the employee applies for a job with your company in the future.
But documentation isn't just a record of a seasonal worker's performance, Wasserman noted; it can justify rehiring or permanently hiring stellar performers.
