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.