Pitfalls and Best Practices When Hiring for the Summer Season

Q: I hire seasonal employees for the summer.  Are there any particular considerations I should be aware of?

A: Seasonal employees can provide much needed support during the summer months.  However, there are certain issues to consider.  First, it is important to clarify upfront that employees are only expected to work for the summer, while at the same time reminding employees that the relationship is at-will and can be ended at any time by either party.

Another issue to consider is benefits. Many employers do not provide seasonal employees benefits other than what is legally mandated.  That practice is fine from a legal standpoint so long as it is applied consistently.  In terms of legally mandated benefits, it is essential for employers to understand which benefits apply to seasonal employees.  In certain circumstances, larger employers may be required to offer certain seasonal employees health benefits under the Affordable Care Act.  Moreover, depending on the jurisdiction, seasonal employees may be eligible for paid sick leave.

In New York City, for example, most employers have to allow employees who work more than 80 hours in a calendar year to accrue sick leave. While sick leave begins to accrue on the first day of employment, however, employees may not use sick leave until 120 days after the start of employment.  Thus, most seasonal workers will accrue sick leave, but will not be employed long enough to actually use it.  In contrast, Philadelphia’s sick leave law explicitly excludes seasonal workers, who are defined as people who have been hired for a temporary period of not more than sixteen weeks during a calendar year.

Seasonal employees also would be eligible for worker’s compensation benefits and potentially may be eligible for unemployment insurance benefits.

In addition to the benefits issues, employers also should be aware that seasonal employees are subject to the same wage and hour laws as other employees. Under federal law, non-exempt employees (whether seasonal or not) must be paid overtime for hours worked over 40 in a week.  Employers should be sure to be in compliance with state law requirements for overtime, as well as meal and rest breaks.

For employers who organize summer company events, such as barbeques, if attendance is mandatory, employees (including seasonal employees) should be compensated for their time. If attendance is truly voluntary, then employees who attend the event do not need to be compensated for their time. Consider establishing guidelines for appropriate employee conduct at such social events, particularly if they include alcohol.

Finally, while it may be tempting for employers to bypass the standard hiring and orientation processes for seasonal employees, it is crucial that seasonal employees are given policies and training in key areas, such as non-discrimination and harassment. In particular, employers should emphasize policies on sexual harassment, as well as other forms of harassment, and make clear that their policies apply equally to both seasonal and non-seasonal employees.  In addition to ensuring seasonal employees themselves are trained on such policies, it is also important for all employees to understand that seasonal employees are covered by the policies.  Employers who employ seasonal employees should consider revising their written policies so that seasonal employees are specifically included in the list of individuals protected and subject to anti-harassment policies, as well as EEO policies more generally.

Jessica Rothenberg