November and December account for a substantial portion of retail sales—up to 30 percent of annual sales for some businesses. And while there are reports that this holiday shopping season has been delayed due to the presidential election, sales are still expected to top last year’s. A survey conducted by the National Retail Federation predicts that retailers will hire almost 700,000 seasonal workers to meet their needs this holiday season.
What’s a human resources department to do when faced with the challenge of recruiting, onboarding, and training so many new hires? The answer: Do what you would do for any other new hire. The same employment laws, regulations, and protections generally apply to all of your employees—even if the term of employment is brief. Here are some things to remember as you hire workers to help with this busy time of year.
1. 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. An employer may be liable for an employee’s inappropriate actions in many circumstances and claiming that the employee was “just seasonal” is not a defense if that employee engages in inappropriate and/or unlawful conduct. Though background checks can be costly and time-consuming, employers should think twice before omitting them in order to expedite the hiring process. 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 (such as a background check report) you obtain from a consumer reporting agency.
2. Make Sure That the Employee is Eligible
Remember that seasonal workers are subject to the same eligibility verification requirements as nonseasonal workers, so it is critical that your hiring managers understand the I-9 process. Even if the employee worked for you in the past, you may need to update his or her documents. In some cases, employers can rely on I-9 verification documents supplied within the previous three years, but employers may want to be cautious when applying this exception.
3. Seasonal Employees Have the Same Protections as Regular Employees
Seasonal employees are protected by provisions of Title VII of the Civil Rights Act of 1964, 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 of 2008, and other important federal and state laws. 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 generally must provide reasonable breaks to nonexempt workers who need to express breast milk. (Note that some states provide more generous protections to breastfeeding mothers and may explicitly prohibit discrimination on that ground as well.) If a seasonal employee requests an accommodation, treat the request as you would a request by a permanent employee.
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 (to make sure expectations are clear), but do not guarantee or promise a specific period of employment (and thus alter the employee’s at-will status). Employers should consider requiring all seasonal employees to sign an acknowledgment that their employment is at-will.
Give the employee information about his or her pay rate; 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.
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 should reflect that. As always, employers should frequently review job descriptions to ensure that they are accurate and complete and identify essential functions of the job.
The same wage and hour, discrimination, and harassment issues that give rise to claims by regular employees can occur during the employment of a seasonal worker, and the same reasons for using an arbitration agreement with regular employees exist with seasonal workers.
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. 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. At a minimum, employers should give seasonal workers copies of applicable EEO and non-harassment policies, as well as wage and hour policies.
5. Train Your Seasonal Hires
Don’t let the hectic pace of the holiday season keep you from conducting important employee training. Training seasonal workers during the onboarding process can help your organization run smoothly and minimize liability down the road. Here are some key areas on which you may want to train seasonal hires:
- equal employment opportunity, discrimination, harassment, and 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; and
- general workplace rules (e.g., customer service expectations and counting till).
6. 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.
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