Author: Trina Clayton
For many retailers, the holiday shopping season is a “make or break” period that can define their bottom lines for the entire year. Other businesses such as restaurants and hotels also see a huge uptick in traffic associated with holiday shopping and travel. Temporary and part-time employment spikes as retailers and other businesses increase staffing to accommodate this seasonal increase in business.
As with hiring any employee, well-planned hiring practices that comply with applicable employment laws can help ensure seasonal employees are well-suited for the job and the company is prepared to defend any possible claims. Below are a few actions employers can take to avoid common legal pitfalls when hiring seasonal workers.
- Abide by All Wage and Hour Laws: With few exceptions, California law requires employers to pay any non-exempt employees one-and-one-half times their regular rate of pay for any hours worked in excess of 8 hours in any workday, or 40 hours in a given workweek. An employee is further entitled to double their regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of 8 on the seventh consecutive day of work in a workweek. These overtime laws apply equally to seasonal workers, as do state and local minimum wage laws.
- Properly convey hiring duration: You may presume seasonal employees understand they have been hired on a temporary basis, but it is particularly important for employers to explicitly specify the limited duration of employment both at the onset and in writing. In addition, employers should require any seasonal employees to acknowledge, in writing, that they understand they are being hired for a limited duration and are “at-will” employees – meaning the employer has a legal right to terminate the employee, with or without cause, at any time.
- Proper Classification: Employers often misclassify employees as independent contractors – this practice is especially common when hiring seasonal employees. Employers should be sure to avoid designating a seasonal worker as an independent contractor without first determining that the circumstances legally justify such a classification.
- Proper Training: Even though seasonal employees may only be with your company for a relatively short time, providing proper training is critical for maintaining a productive, fair, and safe workplace. Employers commonly forget to give seasonal employees handbooks (and have them sign off on them) – if your business has “regular” employees sign arbitration agreements, you should do this for seasonal employees as well. Seasonal employees should generally receive the same training as other new hires, such as training in anti-harassment, nondiscrimination, safety, and other important workplace issues.
As an important reminder, both San Francisco and San Jose have enacted local ordinances designed to allow “regular” part-time employees the first opportunity to work additional shifts before an employer can hire temporary or seasonal workers.
- Under San Jose’s “Opportunity to Work” ordinance passed earlier this year, San Jose businesses with 36 or more employees must offer, in writing, extra work hours to existing qualified part-time employees. If those employees aren’t qualified or decline the extra hours, an employer can then hire additional workers to fill the shifts.
- Under San Francisco’s Retail Workers Bill of Rights, “formula retail establishments” with at least 40 retail sales establishments worldwide and 20 or more employees in San Francisco, must, before hiring new employees, offer additional work hours to qualified part-time employees who have performed similar work for the covered retail establishment, and afford those part-time employees 3 days to accept the offered hours.
Employment law, especially in California, is in a state of constant flux. Employers must keep apprised of new legislation, and comply with all federal, state and local employment laws. For specific legal advice regarding any employment issue, please contact Ad Astra for guidance.