Does your organization need seasonal help to support business operations during specific times of the year? There are many types of businesses that need temporary or seasonal help to meet industry demands or increased traffic. Businesses might hire seasonal employees to staff outdoor pools in the summer or ski resorts in the winter. There are also seasonal needs for agriculture-related work and store and delivery services due to increased holiday shopping. When hiring to meet seasonal needs, it’s important for employers to understand the definition of seasonal employment and how employment laws apply to these employees.
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Employment laws are in place to protect workers and those rights are related to their employee status. There are four types of employees: full-time, part-time, temporary, and seasonal. Full-time employees are typically entitled to the most benefits and protections, but every category has rights under federal, state, and local laws. In this article, we’ll explore seasonal employment: what it means, how workers are protected, as well as pay and leave requirements associated with this employee class.
What is the Definition of a Seasonal Employee?
Seasonal employees are hired by businesses that need extra help during a particular season, such as the summer beach season or the holiday shopping season. The IRS defines a seasonal employee as “an employee who is hired into a position for which the customary annual employment is six months or less and for which the period of employment begins each calendar year in approximately the same part of the year, such as summer or winter.” Seasonal employees are still protected by the same laws that govern employer interactions with regular employees; for example, both categories of employees are entitled to earn minimum wage, overtime, and worker’s compensation.
Protections Under the Fair Labor Standards Act (FLSA)
The FLSA regulates minimum wage, overtime pay, recordkeeping, and youth employment standards but it does not define full-time or part-time employment. Therefore, there is no rule as to the number of hours seasonal employees can work as long as the rules governing minimum wage and overtime are followed. There is an exception to this rule for amusement or recreational establishments that do not operate for more than seven months in any calendar year or if they pass the 33-1/3% test. (See the Department of Labor Fact Sheet: Exemption for Seasonal Amusement or Recreational Establishments Under the FLSA). However, it’s important to note that some state wage laws may not recognize or permit the application of this exemption. Employers must comply with the most stringent state and federal laws.
Does FLSA Apply to Your Business?
According to the law, exceptions are only granted to amusement or recreational establishments which include the following:
Beaches and boardwalks
Ice skating rinks
If your business does not fall into one of these categories, then FLSA applies to your seasonal employees, and you must abide by minimum wage and overtime requirements.
Ensure Compliance with Child Labor Regulations
Authorized by the FLSA, the federal child labor laws were enacted to ensure that young people are protected when they work. This applies to seasonal employment as well. Teens who are 14 and 15 years of age are only allowed to work for a limited number of hours each week in permitted occupations. For youth 16 years of age and older, there are no federal limits to the number of hours worked, however, 16- and 17-year-olds cannot work in hazardous occupations. The Department of Labor has published Fact Sheets and FAQs to provide guidance to employers in different industries from amusement parks and food establishments to lifeguarding and roofing activities. Employers should also ensure compliance with State Child Labor Laws—for example, some states require work permits for youth.
Another Reason to Properly Classify Workers
According to the Department of Labor Fact Sheet on internship programs, the FLSA requires for-profit employers to pay employees for their work. However, interns and students may not be employees under the FLSA—in which case the FLSA does not require compensation. To make this determination, employers should conduct the “primary beneficiary test” to determine if the intern or the employer is the “primary beneficiary” of the working relationship. Please review the DOL’s fact sheet to see all seven factors involved in the test. If the test reveals that the intern or student is an employee, then they are entitled to minimum wage or overtime pay under the FLSA.
Are Seasonal Employees Entitled to Time Off?
While you may offer flexible scheduling for your seasonal employees, employers are not always required by law to provide paid leave. Currently, there are sixteen states plus Washington, D.C. that have paid sick leave laws, however, employers will have to check with each applicable jurisdiction to see if these laws apply to their seasonal workers. For example, the laws all have different waiting periods before an employee can use accrued paid sick leave; therefore, a seasonal position may end before the employee is able to use the leave. In addition, some states have explicitly excluded seasonal workers from receiving paid leave.
Employers are also not required to provide Family Medical and Leave Act (FMLA) leave to sea
sonal employees. To qualify for FMLA leave, the employee must have worked at least 12 months for the employer in addition to meeting other requirements.
Best Practices for Seasonal Employment and Compliance
It’s important for all employers and HR professionals to understand the employment laws that apply to your workforce, including those who work on a seasonal basis. Worker classification is just as important with seasonal employees as any other. Be sure to consult the Department of Labor’s website, state employment laws, or legal counsel, and run through any tests (i.e., the primary beneficiary test) that can help you properly classify employees so you can ensure compliance with FLSA and applicable state or local regulations.
Remember, every state is different, so you may be required to provide state-mandated paid sick leave or overtime to nonexempt seasonal employees depending on where you do business. You may also be required to comply with predictive scheduling laws that require employers to provide advance notice of work schedules to employees.
It’s always helpful to set clear expectations and provide a copy of written policies and procedures in your employee handbook to all employees—including seasonal workers. If you’d like to learn more about how employment law applies to seasonal employment, watch our recorded webinar: Avoid These Legal Issues with Seasonal Employment. In this recording, you’ll hear from expert panelist Brian J. Shenker of counsel in the Long Island, New York office of Jackson Lewis P.C.