It’s that time of year once again! Retailers are gearing up for the holidays and hiring seasonal workers in droves. Unfortunately, the flurry of activity and the common misperception that seasonal workers have a different employment status because they are “temporary” workers can often result in employers cutting corners when it comes to onboarding. To ensure that you have a happy holiday season, keep in mind the following important tips on hiring seasonal workers.
1. Take Time to Vet Your Seasonal Hires
Are background checks expensive? Yes. Are lawsuits more expensive than background checks? Yes. If your company performs background checks on regular employees, maintain the same practice for your seasonal workers. The same potential liabilities can arise from inappropriate conduct by seasonal workers as nonseasonal workers. The last thing you want is to forgo your standard background check and inadvertently hire someone who literally walked out of prison (where she was serving time for multiple-count felony convictions involving money laundering, theft, and assault and battery), headed straight to your store to fill out an application as a cashier, and assaulted another employee or customer. The situation would be even worse if you convert her to a regular employee at the end of the season and the need to conduct a background check falls through the cracks at that point or someone wrongly assumes it was conducted at the initial point of hire. And, keep in mind your obligations under the Fair Credit Reporting Act (and any similar state laws) when taking adverse employment actions based upon information contained in a consumer report (such as a background check report) you obtain from a consumer reporting agency (such as a background check company).
Also, although it seems like common sense, it is important to actually read the employment applications completed by your seasonal workers. If anything appears awry (e.g., if the individual lists prior employment as an assistant manager for Company X in Texas and lists that, at the same time, he was an assistant manager for Company Y in Georgia), dig deeper and ask questions. It is amazing how often individuals falsify information on their applications, which leads me to my next point.
2. Train Your Hiring Managers
Remember that seasonal workers are subject to the same eligibility verification requirements as nonseasonal workers and are entitled to the same protections against discrimination, harassment, and retaliation. Thus, it is critical that your hiring managers understand the I-9 process, understand the basics of Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act of 1967, the Fair Labor Standards Act (FLSA), the Genetic Information Nondiscrimination Act, and other important federal (and state) laws. They also must understand what questions can and cannot be asked of applicants (e.g., “Are you eligible to work in the United States?” and “Can you perform the essential functions of this position with or with an accommodation?” are permissible while “Are you pregnant?” or “Are you married?” are not). In addition to ensuring that hiring managers understand basic antidiscrimination law, you will want to ensure that the hiring managers understand that accommodation obligations apply to seasonal workers just as they do to nonseasonal workers:
- Under Title VII, employers must reasonably accommodate sincerely held religious beliefs unless doing so would create an undue hardship.
- Under the ADA, employers must reasonably accommodate employees with disabilities unless doing so would create an undue hardship.
- Under the FLSA, employers must provide reasonable breaks to nonexempt workers who need to express breast milk (and the exception to this requirement is very limited).
So, what do you do when your seasonal worker is hired to work through the holidays and comes in the first day and mentions, nonchanlantly, that she will not be able to work on Saturdays, Sundays, Hanukah, or Christmas Eve because of her sincerely held religious beliefs? First, do not panic. Second, treat the situation as you would any other request for a religious accommodation, and engage in the interactive process. It could very well be that other employees want more hours and are willing to cover the days off (without pushing these other employees into overtime status). Bring your human resources team into the loop and explore possible options to address the employee’s needs to be off work during those days.
3. Get Your Documentation Ducks In a Row
Communicating with seasonal workers during the onboarding process is critical to minimizing liability down the road. With seasonal workers, you must strike that balance between giving the employee an idea of the likely duration of the employment (to make sure expectations are clear) while at the same time not guaranteeing or promising a specific period of employment (and thus altering at-will status). All seasonal employees should be required to sign an acknowledgment that their employment is at-will.
Seasonal workers should also be provided with written information regarding their compensation. Most seasonal workers are nonexempt, and it is important to make sure that the hourly pay rate is communicated to the employee before he or she starts working. Note that many states have passed legislation increasing their state minimum wages effective January 1, 2015. Thus, if you have employees in those states, make sure that pay rates are adjusted accordingly. Several New England states also have laws that require the payment of holiday pay to employees who work on certain holidays, such as Thanksgiving, Christmas, and New Year’s Day.
Next, your job descriptions should be up-to-date and accurately reflect the day-to-day responsibilities of the particular positions. If you are going to have your seasonal workers perform different duties than your regular workers (or have them perform only a portion of the duties your regular workers are expected to perform), it is best to have separate job descriptions distinguishing between the positions. Seasonal employees should be given a copy of their job descriptions so they fully understand the scope of their responsibilities.
Do you utilize arbitration agreements? If so, you should consider having your seasonal employees execute an arbitration agreement upon hire. It is not uncommon for employers to convert seasonal employees to regular employees, and often execution of arbitration agreements can be overlooked if not addressed initially. Moreover, all the same wage and hour, discrimination, and harassment issues that give rise to claims by regular employees can occur during the albeit brief employment of a seasonal worker, and the same reasons for using an arbitration agreement with regular employees exist with seasonal workers.
Finally, all seasonal employees should be given a copy of your employee handbook and be required to sign a written acknowledgment confirming receipt of the handbook. Again, although their employment may be brief, they should still be aware of your expectations, particularly relating to discrimination and harassment. Again, requiring that all employees acknowledge receipt of the handbook at the initial point of hire ensures that these individuals will not fall through the cracks if they are converted to regular employees at the end of the holiday season.
4. Once Hired, Train Your Seasonal Hires on Critical Policies
Is it imperative to train your seasonal workers on your use of company vehicles policy? Probably not, unless your seasonal hires will be driving company vehicles. Is it imperative to train your seasonal workers on your equal employment opportunity (EEO) policy? Absolutely. With regard to training time, focus on those policies that can make or break you. In other words, if your seasonal worker runs to the Equal Employment Opportunity Commission after you discharge him or her for violating Policy X, you should ensure that the seasonal worker has been trained on both your discrimination policy and Policy X. Below are a few policies upon which seasonal workers should be trained:
- EEO/discrimination/harassment/retaliation policies
- wage and hour policies (e.g., time recording, clocking in/clocking out, overtime, off-the-clock work, and meal and rest breaks)
- workplace safety policies (e.g., crowd management plans)
- attendance expectations
- general workplace rules (e.g., customer service expectations, counting till, etc.)
5. Make Sure Recordkeeping Is Up to Snuff
With the sudden influx of new employees, it’s important for employers to make sure that information about seasonal workers is recorded completely and accurately in their recordkeeping systems. Maintaining accurate records is important not only with respect to immediate issues such as payroll, but can become important in the future as well. For example, seasonal employment counts toward the 12-month portion of the eligibility requirements for coverage under the federal Family and Medical Leave Act (FMLA). Therefore, employers’ recordkeeping systems must track and aggregate non-continuous periods of employment.
Seasonal employees may become witnesses or even parties in future lawsuits, so it is important to have accurate records of when and where they were on duty, and of how to reach them after their seasonal employment ends. Seasonal employment sometimes continues beyond the holidays and can turn into a non-seasonal relationship. Employers want to be sure that any such change in status is accompanied by all the procedures used when hiring nonseasonal workers. Thus, employers should make sure that their recordkeeping systems are accurately coding and updating any information that affects key data such as anniversary dates, review dates, step pay increases, etc.
This is part three of our blog series on a variety of issues involved in employing seasonal workers. Part one of this series, “‘Tis the (Retail) Season, Part I: OSHA’s Tips for a Safe Black Friday,” covered federal agency recommendations to retailers on maintaining a safe workplace during holiday sales and discussed policies to consider when retail employers implement a crowd management plan in preparation of Black Friday sales. Part two of this series, “‘Tis the (Retail) Season, Part II: Conducting Background Checks on Seasonal Workers” offered tips on conducting background checks on a seasonal workforce.