United States: The Holiday Hiring Frenzy: 10 Tips That Will Keep You Off the Naughty List

Last Updated: October 18 2017
Article by Kelly S. Hughes

It's that time of year again—many employers, especially retailers and hospitality employers, are hiring seasonal workers for the holiday shopping season. Despite the challenge of adding so many employees in a short period of time, human resources departments should be cautious of taking shortcuts with recruiting, onboarding, and training. Below are 10 tips to keep in mind during this hectic time of year.

1. Review Your Application

If you haven't recently reviewed your application for compliance with federal, state, and local laws, take this opportunity to do so. For example, many states and municipalities have passed "ban the box" legislation, limiting the types of information employers can ask new applicants. Failure to comply with such laws can result in steep penalties.

2. Don't Skip the Background Check

If your company performs background checks as part of the regular hiring process, it may be best to do the same for your seasonal hires. Though background checks can be costly and time-consuming, employers may want to think twice before omitting them. Also, 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.

3. Make Sure That the Employee Is Eligible

Seasonal workers have the same eligibility verification requirements as nonseasonal workers. Be sure to comply with I-9 verification requirements.

4. Put It in Writing

Communicating with seasonal workers during the onboarding process is critical to minimize liability down the road. Here are some key areas to consider documenting:

  • Duration of Employment. Employers may want to give their seasonal employees an idea of the likely duration of the employment, but need not guarantee or promise a specific period of employment (and thus alter the employee's at-will status). Employers can consider requiring seasonal employees to sign an acknowledgment that their employment is at-will.
  • Compensation. Most states' wage payment laws require that employers notify their employees, at the time of hire, of the promised wage rate; most seasonal workers are nonexempt, and it is helpful to make sure that the hourly pay rate is communicated to the employee before starting work.
  • Job Description. Employers may want to give seasonal employees a copy of their job descriptions so they fully understand the scope of their responsibilities. If their duties differ from those of regular employees, their job descriptions can reflect that.
  • Employee Handbook. You may want to give your seasonal employees a copy of your employee handbook and ask them to sign a written acknowledgment confirming receipt of the handbook.  At a minimum, employers may want to give seasonal workers copies of applicable equal employment opportunity and non-harassment/retaliation policies, wage and hour policies, and information regarding how to report concerns about their employment. 

Do note that applicable state or local law may require certain pieces of information to be provided to employees, including seasonal hires, so be sure to identify the potential legal provisions that may apply.

5. Train Your Seasonal Hires

Don't let the pace of the holiday season keep you from conducting employee training. Training seasonal workers during the onboarding process can help your organization run smoothly and minimize liability down the road. Some key areas on which you may want to train seasonal hires include equal employment opportunity, discrimination, harassment, and retaliation policies (which should include reporting mechanisms for employee complaints); wage and hour policies; workplace safety policies; attendance expectations; and general workplace rules.

6. Review Your Leave Policies

The "localization" of employment laws at the state and municipal levels has continued in 2017, further complicating compliance for multistate employers. Leaves of absence laws are among the most common, with several local jurisdictions requiring employers to provide paid family and medical leave. While some leave laws require that individuals be employed for a certain amount of time before becoming entitled to leave, not all leave laws have this requirement. Employers may want to make sure that their leave policies have been updated to comply with the new requirements.

7. Don't Forget About Other State and Local Laws

In addition to leaves of absence, many states and local governments have passed laws related to the minimum wage and predictive scheduling and/or have enacted protections for pregnant and nursing mothers. Again, just because they are employed for a short period of time does not mean that seasonal workers are not entitled to the protection of these laws. Employers may want to examine which state and local laws apply to their locations and take steps to comply.

8. The Separation Process for Seasonal Hires 

Separation is one area where the policies that apply to regular employees and seasonal employees may differ, depending on the circumstances and the jurisdiction. For example, in some cases, seasonal employees do not accrue vacation or sick leave and, as a result, those issues don't need to be addressed at termination. However, employers may want to carefully consider what rights do apply and proceed accordingly. They may also want to document the separation process and complete exit interviews with seasonal employees so that accurate records of employees' time with the company are maintained.

9. Seasonal Hires May Count as Part of the Workforce Under Some Laws

Remember that seasonal employees may need to be counted for purposes of applicable state or federal laws. Smaller employers in particular need to be cognizant of the impact that their seasonal workers might have with respect to the triggering of employment laws such as Title VII of the Civil Rights Act of 1964. If an employer is rather small but utilizes seasonal employees for 20 or more workweeks during the calendar year, those employees will be counted when determining whether the employer has the required number of employees for purposes of Title VII coverage. Similarly, adding seasonal workers could cause an employer to qualify as an applicable large employer (ALE) under the Affordable Care Act.

10. The Same Rules Apply

Finally, remember that the same employment laws, regulations, and protections generally apply to all of your employees—even if the term of employment is brief. Seasonal employees are protected by provisions of Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act, the Fair Labor Standards Act (FLSA), and other important federal and state laws. Unless doing so would create an undue hardship, employers must reasonably accommodate sincerely-held religious beliefs and must reasonably accommodate employees with disabilities. If a seasonal employee requests an accommodation, treat the request as you would a request by a permanent employee.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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