Seasonal Workers Have Rights Too

Neil Alexander, shareholder and co-chair of the Staffing and Contingent Workers Practice Group at labor and employment firm Littler Mendelson, says that when the employer mandate comes online in 2015, companies and the staffing firms that provide temporary seasonal workers will have to pay special attention to whether or not these workers count toward the mandate's 50-employee number.

Alexander explained that if an employee ' even one deemed seasonal or temporary ' works for more than 90 days with an average of 30 hours clocked in per week, that employee will become a part of their company's headcount under the ACA employer mandate. He said that companies will need to be careful when the mandate comes into play ' and that some parties may try to circumvent it. “I think you're going to start to see a bunch of staffing firms that are offering 29-hour staffing models,” he predicted.

According to Ann Carr Mackey, a shareholder and co-chair of the Health Care Reform Subgroup at labor and employment firm Ogletree Deakins, the health care law will measure the employer mandate obligation on a month-by-month basis. However, the government has set up a safe harbor provision, by which employers can extend the measurement period for a seasonal worker from a month to anywhere from three to 12 months. If the seasonal employee works an average of 30 hours a week during that measurement period, he or she still qualifies for benefits under the employer mandate.

Mackey added that employers should be cautious ' if a seasonal employee hits the 30-hour average mark over a year-long measurement period, the employer must continue providing benefits over the following year, called a “stability period,” even if the employee is no longer working as many hours on average.

Other Protections

Currently, companies and staffing agencies are not compelled to provide seasonal workers with benefits, but there are other protections that these workers are entitled to receive, Steve Pockrass, a shareholder at Ogletree and co-chair of the firm's Wage and Hour Practice Group, told this author.

One example is the Fair Labor Standards Act (FLSA), the federal law that sets standards for minimum wage, overtime pay, record-keeping, and youth employment. Pockrass said the FLSA applies just as comprehensively to seasonal employees as it does to regular staff, so companies should be wary. Under certain circumstances, he noted, seasonal workers may even be covered by the Family and Medical Leave Act (FMLA), which allows workers unpaid leave and job protection for family or medical reasons.

Pockrass emphasized that despite the condensed timeline of seasonal hiring, employers need to provide seasonal workers with adequate onboarding and training, as they would with a regular employee ' which means carefully explaining the company's policies and procedures, and providing employee handbooks. “I think too, with onboarding, it's important that companies understand that the same rules of conduct apply to the seasonal workers that apply to all other workers,” he said. Even if the employee will only be around for a month or so, he added, he or she needs to know how to properly record and report workplace problems, including harassment, in order to prevent legal liability for the company.

And while retailers may only keep seasonal employees through the end of the winter holidays, many industries use short-term hires throughout the year ' and into the next. “If they do hire any seasonal employees and they are going to work past Jan. 1, employers need to remember: a lot of times new state laws go into effect on Jan. 1, and new minimum-wage laws,” said Pockrass.

Permanent Hiring

Sometimes, a seasonal employee will catch a lucky break and become a permanent staff member, but there are caveats there too. Alexander explained that in certain instances, some companies may fail to ensure that the temporary-to-permanent worker has all of the skills and credentials for his or her new position ' like English language proficiency or a sufficient level of education.

“You need to make a very considered decision on whether that person can be successful despite the missing qualification,” Alexander said.

Rebekah Mintzer is a reporter for Corporate Counsel, an ALM sister publication of this newsletter.

Companies that hire seasonal workers expected big changes at the close of 2013 with regard to their responsibilities to provide health benefits under the Affordable Care Act (ACA). However, with the start date for “Obamacare's” employer mandate (which requires companies with 50 or more employees to provide health benefits) pushed back from January 2014 to January 2015, employers have another year before they need to start making changes to their seasonal-employee policies.

Fourth-Quarter Hiring

The health care mandate may not be a concern for companies hiring help for the busy holiday season this year, but experts say there are still plenty of legal issues that companies should keep in mind for fourth-quarter hiring.

Neil Alexander, shareholder and co-chair of the Staffing and Contingent Workers Practice Group at labor and employment firm Littler Mendelson, says that when the employer mandate comes online in 2015, companies and the staffing firms that provide temporary seasonal workers will have to pay special attention to whether or not these workers count toward the mandate's 50-employee number.

Alexander explained that if an employee ' even one deemed seasonal or temporary ' works for more than 90 days with an average of 30 hours clocked in per week, that employee will become a part of their company's headcount under the ACA employer mandate. He said that companies will need to be careful when the mandate comes into play ' and that some parties may try to circumvent it. “I think you're going to start to see a bunch of staffing firms that are offering 29-hour staffing models,” he predicted.

According to Ann Carr Mackey, a shareholder and co-chair of the Health Care Reform Subgroup at labor and employment firm Ogletree Deakins, the health care law will measure the employer mandate obligation on a month-by-month basis. However, the government has set up a safe harbor provision, by which employers can extend the measurement period for a seasonal worker from a month to anywhere from three to 12 months. If the seasonal employee works an average of 30 hours a week during that measurement period, he or she still qualifies for benefits under the employer mandate.

Mackey added that employers should be cautious ' if a seasonal employee hits the 30-hour average mark over a year-long measurement period, the employer must continue providing benefits over the following year, called a “stability period,” even if the employee is no longer working as many hours on average.

Other Protections

Currently, companies and staffing agencies are not compelled to provide seasonal workers with benefits, but there are other protections that these workers are entitled to receive, Steve Pockrass, a shareholder at Ogletree and co-chair of the firm's Wage and Hour Practice Group, told this author.

One example is the Fair Labor Standards Act (FLSA), the federal law that sets standards for minimum wage, overtime pay, record-keeping, and youth employment. Pockrass said the FLSA applies just as comprehensively to seasonal employees as it does to regular staff, so companies should be wary. Under certain circumstances, he noted, seasonal workers may even be covered by the Family and Medical Leave Act (FMLA), which allows workers unpaid leave and job protection for family or medical reasons.

Pockrass emphasized that despite the condensed timeline of seasonal hiring, employers need to provide seasonal workers with adequate onboarding and training, as they would with a regular employee ' which means carefully explaining the company's policies and procedures, and providing employee handbooks. “I think too, with onboarding, it's important that companies understand that the same rules of conduct apply to the seasonal workers that apply to all other workers,” he said. Even if the employee will only be around for a month or so, he added, he or she needs to know how to properly record and report workplace problems, including harassment, in order to prevent legal liability for the company.

And while retailers may only keep seasonal employees through the end of the winter holidays, many industries use short-term hires throughout the year ' and into the next. “If they do hire any seasonal employees and they are going to work past Jan. 1, employers need to remember: a lot of times new state laws go into effect on Jan. 1, and new minimum-wage laws,” said Pockrass.

Permanent Hiring

Sometimes, a seasonal employee will catch a lucky break and become a permanent staff member, but there are caveats there too. Alexander explained that in certain instances, some companies may fail to ensure that the temporary-to-permanent worker has all of the skills and credentials for his or her new position ' like English language proficiency or a sufficient level of education.

“You need to make a very considered decision on whether that person can be successful despite the missing qualification,” Alexander said.

Rebekah Mintzer is a reporter for Corporate Counsel, an ALM sister publication of this newsletter.