For many Maine employers, the arrival of summer represents the time for hiring seasonal workers. But hiring temporary seasonal employees presents some substantial legal traps for the unwary. Employers should assess their seasonal hiring practices to ensure compliance with various state and federal laws. Here are some of the top pitfalls that employers should watch for when hiring seasonal workers.
Verify that employees are legally permitted to work in the U.S.
Employers must treat seasonal employees in the same way they treat regular employees by verifying that they are legally allowed to work in the U.S. Employers should be sure to complete the Form I-9 and E-Verify even for seasonal employees.
Be aware of restrictions related to employment of minors
Under federal and state law, different rules apply to the employment of minors. For example, minor employees are restricted from working in certain hazardous occupations and are restricted in the hours they can work. In addition, Maine law prohibits minors from working more than a certain number of hours or alone in a cash-based business such as a concession stand. Employers should be sure to review applicable law for compliance when employing minors for seasonal employment.
Take care when classifying a seasonal worker as an “independent contractor”
Businesses often misclassify workers as “independent contractors,” which can lead to liability in several areas. This temptation is often especially compelling for seasonal employers. 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.
Determine whether you are required to pay overtime
Generally, the federal Fair Labor Standards Act and similar state laws require that employers pay nonexempt employees one-and-a-half their regular rate of pay for hours worked in excess of 40 in a workweek. Both federal and state law, however, exempt certain individuals and businesses from overtime requirements. Under Maine law, for example, certain summer camps do not have to pay overtime to counselors, junior counselors or counselors-in-training. Employers should be sure to review their seasonal employees’ status to determine whether they are exempt from overtime.
Evaluate whether hiring seasonal employees triggers other legal obligations
Most federal and state employment laws only apply to businesses that employ a certain number of employees. For example, only those businesses employing at least 15 employees in one location must comply with the Maine Family and Medical Leave Law. Small businesses that may not be covered by certain employment laws should pay attention to whether hiring seasonal employees will increase their total number of employees enough to trigger additional legal obligations.
Take care when hiring “unpaid interns”
Under the federal Fair Labor Standards Act, there are only narrow circumstances under which a business can hire an “unpaid intern” or “volunteer.” While the test for whether an individual is appropriately classified as an unpaid intern is complicated, in general the intern must be doing work primarily for his or her own educational benefit, and not doing work for the benefit of the business. If the “intern” or “volunteer” performs routine work of the business and the business is dependent on that work, the worker is probably an employee and must be paid minimum wage and overtime. Businesses should be sure to seek guidance when retaining summer interns or volunteers.
These are just a few of the issues employers of seasonal workers face. In addition, businesses should clearly inform seasonal employees that their employment is temporary. As always, employers should take care to hire the best seasonal candidates, apply and follow internal policies, and closely monitor their pay practices to ensure they are complying with state and federal laws for all employees. Employers that carefully assess their seasonal hiring practices can take great strides toward protecting themselves from liability.
Eric Uhl is a partner in the Portland and Boston offices of Fisher & Phillips, a law firm that focuses on labor and employment law, and has 31 offices across the country.