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November 2018

What’s a Seasonal Job

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What’s a Seasonal Job?

Seasonal employment means employment which can be conducted only during certain times of the year, and in no event does it include employment which extends for more than 14 weeks in a calendar year. Under these statutes, a door-to-door sales representative who works year-round is not a seasonal employee although commissions fluctuate during the year.  A claimant’s compensation rate is computed on the basis of a full-time work week, despite the seasonal nature of the claimant’s employment, where the claimant’s contract of hire provides for a forty-hour work week whenever work was available.

 

The second type of statute deals with employees in employments in which it is the custom to operate for a part of the whole number of working days in each year. Under these statutes, an itinerant construction worker whose work is dependent on the weather is a seasonal employee.

 

The third type of statute deals with occupations which are exclusively seasonal and therefore cannot be carried on throughout the year. These “exclusively seasonal” statutes exclude from the category of seasonal employments any occupation that is possible of performance and of being carried on through the entire 12 months.

 

Under some statutes, the term “seasonal worker” includes but is not limited to any employee who is employed directly in agriculture or in the harvesting or initial hauling of forest products. Other statutes compute the average weekly wage for agricultural employees as the weeks worked in agricultural employment divided into the total wages which the employee earned from all agricultural operations during the 12 calendar months immediately preceding the injury.

 

Under some statutes, a seasonal worker’s average weekly earnings are computed as in the case of continuous employment except that the number of hours of the normal full-time working day and the number of hours of the normal full-time working week shall be such hours and days in similar service in the same or similar nonseasonal employment. More commonly, average weekly wages are determined by dividing by 52 the seasonal worker’s earnings in the 52 weeks immediately preceding the injury. There are included in the worker’s earnings wages in one-time, concurrent jobs which are not covered by the workers’ compensation statute. Some statutes divide by 50 the total wages earned by the employee from all occupations during the 12 calendar months immediately preceding the accident, at least unless it is shown that during the year, by reason of exceptional causes, this method of computation does not fairly represent the employee’s earnings, in which case, the period for calculation is extended so far as to give a basis for the fair ascertainment of the average weekly earnings. Average monthly wages may be determined by dividing by 12 the total wages earned, including overtime, from all employment in any 12 successive calendar months preceding the injury which fairly represent the claimant’s employment pattern. Sometimes annual earnings are determined by multiplying the daily wage by the number of days in which it is the custom to operate in each year, but not less than 200. Average weekly wages are determined by dividing by 52. A statute has been held constitutional in permitting benefits for parttime and fulltime workers to be based on the average of wages for 13 weeks preceding the injury, but setting the measuring period for seasonal workers as wages earned during the 12 months preceding the injury.

 

Some statutes provide that in the case of the construction industry, mining industry, or other industry where the hours of work are affected by seasonal conditions, the weekly wage shall not be less than five times the daily wage. Such a provision denotes a legislative intent to apply the seasonal conditions provision to the construction and mining industries as a matter of law and to leave open the possibility of its application to other industries, subject to additional proof that the industry in question is one in which the hours of work are affected by seasonal conditions.

 

Seasonal condition, within the meaning of such a statute, is not limited to industries that actually cease operations during the winter months. It also applies to businesses that operate year-round but whose work hours are affected by climatic conditions such as rain, snow, and extreme cold. As applied to the construction industry, such a provision does not violate the equal protection clause of either the state or federal constitutions, since there is a rational distinction between part ime or irregular employment and construction industry employment where full-time employment is affected by seasonal conditions.

 

Under a statute providing that average actual earnings for four pay periods immediately preceding the injury are the employee’s wages except if for good cause shown by the claimant, the use of the four pay periods does not accurately reflect the claimant’s employment history with the employer, in which case the insurer may use additional pay periods, it is proper, when work is sporadic and seasonal, to calculate on a larger scale than four pay periods.

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Recommendations for Employers and Temporary Employment Agencies

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Recommendations for Employers and Employment Agencies

(1) Select the temporary services provider carefully

Talk with business associates and get their recommendations for an established, reputable and qualified temporary services agency for your particular needs. Some agencies have specialties in providing a certain type of employee. Examine the agency’s familiarity with issues of joint employment and ask how the agency has handled joint employment questions when they have arisen previously.

Audit the agency’s employment policies; consider how carefully the agency screens potential employees and what training, if any, it provides for them. Although cost is certainly a factor, try to resist the urge to simply go with the cheapest provider, particularly if you require skilled labor. Remember, if the agency acts illegally toward an employee placed at your company, your company will almost certainly be sued as a joint employer. Thus, auditing your temporary agency’s policies is equally as important as auditing your own policies.

(2) Structure the relationship with the provider clearly.

If the principal goal of retaining a temporary employee provider is to distance the company from the potential liabilities associated with hiring employees directly, the company should require the temporary agency to assume most of the supervisory and fiscal responsibility for its temporary employees.

The provider should be the party to process applications, screen, test and hire applicants and should – to the extent possible – establish the terms and conditions of employment, including wages and benefits. Moreover, the provider should be the one to evaluate, reward, promote, discipline and discharge temporary employees. This requires a careful balancing of the employer’s needs and the potential for joint liability.

Unfortunately, an arrangement that best insulates an employer is not always the arrangement that best promotes business objectives. Employers should not be overzealous in drafting an agreement with a temporary service provider which may insulate it from joint liability if the cost is an unacceptable loss of operational control.

Generally speaking, the greater control the employer retains over the temporary employees, the greater his potential for liability will be. A conscious decision should be made regarding the appropriate balance between maintaining control and avoiding joint employment liability, and this decision should be memorialized by a written agreement.

(3) Monitor the relationship with the temporary employees

Ensure that both the temporary agency and the employee comply with employer policies expressed in handbooks, printed notices or memos.  Once the temporary employees arrive on site, consider the possibility of requesting that the employment agency provide them with their own supervisor to direct and oversee their work. This, of course, depends on the nature of the work and the number of temporary employees retained.

Employers with a unionized workforce and those concerned about accepting employees into an existing bargaining unit should minimize interaction between temporary employees and full-time employees so that all the employees will not be found to share a “community of interest” as defined by the NLRA, and thus be included in a collective bargaining unit.

Delineate the boundaries clearly. Distinguish temporary employees by giving them different name badges, a reduced number of company perks and restricted access to confidential company information or sites. They should also be paid from a source other than regular employee payroll. Do not interfere with a temporary employee’s opportunities for other employment if they arise.

(4) Scrutinize temporary employment relationships carefully.

Examine job classifications predominantly held by temporary employees for adverse impact on protected groups. Seek counsel regarding potential Social Security, tax and welfare benefits contributions due. Understand the potential liability existing in temporary service arrangements before entering one.

Establishing independent contractor relationships with temporary employees will not necessarily save the employer from liability. Many relationships that employers believe to be independent contractor relationships are actually employer-employee relationships. Consult the Internal Revenue Service’s new Worker Classification Manual for guidance in making the correct classification. Written independent contractor agreements are not dispositive of the nature of the relationship. Employers should ensure that the intent to create an independent contractor arrangement with an employee manifests itself in more than a label and an understanding.

(5) Audit company policies to ensure intended coverage.

Employers should carefully review their policies, particularly benefit policies, to ensure only those employees who are the intended beneficiaries are included. Many such policies are vague on the issue of employee coverage, and even vagueness will almost certainly be resolved in favor of the employees.

(6) Employment agencies should insist on a written contract

Employers may not demand a written agreement, but agencies should insist on one. Aside from assisting an agency to prepare an adequate defense in the event that an employee sues, written agreements bolster business by increasing the agency’s professional image and delineating agency and client-employer obligations and expectations.

Agencies should resist client-employer interference in employment matters, particularly where the client-employer has ceded control of the leased workforce to the agency. Apprising client-employers of the consequences of interference may be one effective way to maintain autonomy in decision making.

Finally, temporary service providers should carefully screen potential client-employers and resist accepting liability risks without first evaluating a client’s employment policies and procedures and obtaining written guarantees that the client has mandated nondiscrimination policies and employment at-will language in place.

Even if an agency’s policies and practices are above reproach, the agency may be jointly liable for the client-employer’s misconduct. The best way to handle such potential liability is to (1) make every reasonable effort to avoid the possibility of incurring it; and (2) have a clear agreement in place in which the parties agree to apportion the potential liability and defense costs in a mutually acceptable manner.

Source:

Andrews Sexual Harassment Litigation Reporter, March, 1997, Brent Giddens

Temp Employee Rights

By | Sexual Harassment | No Comments

Temp employees have rights too, even if the employer doesn’t recognize it.  During the holiday season it is more possible that companies hire temporary workers to handle the increase in staffing requirements, or perhaps to allow permanent employees to take a break during the holiday season.

In many cases, the company doesn’t hire the employee directly, but instead hire through a temporary staffing agency.  In essence, it would appear that the staffing agency is really your boss.

The question often becomes who is liable for improper or unlawful conduct or negligence upon a temporary employee.  In many cases, the temporary staffing company will remove an employee who the company is unhappy with temp employee.  In some cases the temp agency believes that it is the company who fired the employee who is responsible for the temp.

Employers should not and cannot fire a temporary employee assuming that the employee’s staffing agency will deal with the consequences. Often the staffing agency and the client-employer are both named as defendants if the temporary employee decides to sue the company. Co-defendants in this situation who have no written agreement between them may get a little shock when they find out who exactly is liable.

Temporary employees do have rights.  As an example, a temp agency cannot work with a company to hire only white temps.  They just cannot agree to discriminate.  Often, if not always, when a temporary employee sues, the employment agency and the client-employer are both named as defendants..

The EEOC gives specific guidelines regarding temporary employee guidelines.  (EEOC) gives specific guidelines regarding temporary employees:

Staffing firm workers are generally covered under the anti-discrimination statutes. This is because they typically qualify as employees of the staffing firm, the client to whom they are assigned, or both. Thus, staffing firms and the clients to whom they assign workers may not discriminate against the workers on the basis of race, color, religion, sex, national origin, age, or disability.

If you are being discriminated or being sexually harassed,

Speak up!  It’s important to the court that the temporary employee has told others of the discrimination or harassment.

Report the problem to both your temporary agency and the correct management chain at your assignment. They may tell you that because you are not a regular employee, you don’t have access to HR.  Not true.  If your temporary boss is sexually harassing you, then go ahead and report it to HR.  Report it to anyone in the chain of command.  If they don’t do anything, you can always report it to the EEOC.

In the meantime, ask to be reassigned. If you think you are being discriminated against, call us immediately at (786) 454-2411.  For more information about sexual harassment, please click here.