Seasonal employees must be
treated like other workers
Q: Many businesses have geared up for the holiday rush by hiring additional workers, but the hiring of seasonal employees isn't just limited to retailers at the holidays. What do employers need to know about employing seasonal workers?
A: Seasonal employees — no matter what industry or time of year they are working — should be treated like any other employee. However, employers need to remember that some laws are triggered when they reach a certain number of employees, and seasonal employees may be included when making that count. For instance, employers with 50 or more employees for at least 20 workweeks in the current or preceding calendar year are subject to the Family and Medical Leave Act, and seasonal workers are included in that count. Other examples include the federal WARN Act, which requires certain notices for layoffs and plant closings. Under the federal WARN Act, seasonal employees who've worked at least six of the past 12 months with an average of more than 20 hours per week will be counted. So, if employers hire seasonal employees and run close to threshold numbers, they need to pay attention to the legalities that may be triggered. Additionally, seasonal agricultural workers have certain protections under the Migrant and Seasonal Agricultural Worker Protection Act.
Q: Are there scheduling restrictions for seasonal employees?
A: Unless they're under the age of 18, no. Seasonal employees must be paid minimum wage and overtime consistent with the Fair Labor Standards Act (FLSA) and Oklahoma wage laws (no passes just because they are only with you for a short period of time). Likewise, seasonal employees must be allowed any breaks required for other employees. For instance, the FLSA requires employers to provide unpaid break time and space for nursing mothers to express milk for one year after the birth of a child. Although it's not specific to seasonal jobs, workers who are ages 16 or 17 don't have any restrictions on the number or timing of the hours they may work, as long as they're not working in occupations the secretary of Labor has declared hazardous. However, several laws restrict the hours and types of work in which a child under 16 may participate. So, if your 14-year-old neighbor kid wants to work for your retail store wrapping gifts, you need to double-check the rules.
Q: Are seasonal employees entitled to workers' compensation and unemployment under Oklahoma law?
A: Workers' compensation, yes. Unemployment, it depends. Workers' comp laws, like other protections such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, apply to seasonal workers in the same way they apply to other workers. With unemployment compensation, the answer depends on who sets the end date of employment. According to Oklahoma Statute title 40, 2-404.2, a seasonal worker isn't eligible for unemployment if he or she is the one who sets the date for the employment to end. However, if the employee meets all the other requirements to be eligible for unemployment, he or she may be eligible for unemployment if the employer is the one who sets the ending date of employment.
PAULA BURKES, BUSINESS WRITER