The Best Way to Spread Christmas Cheer is to Share This Employers’ Holiday Guide Far & Near

December 16, 2019 'Tis the season... for seasonal employees, paid time off, and the potential for ample holiday overtime, that is! During the holiday season, when so much hustle and bustle can become distracting, employers should not lose sight of the many responsibilities – and regulations – that also tend to arrive with the onset of winter.

By: Andree N. Comeaux & Jeffrey A. Riggs

'Tis the season... for seasonal employees, paid time off, and the potential for ample holiday overtime, that is! During the holiday season, when so much hustle and bustle can become distracting, employers should not lose sight of the many responsibilities – and regulations – that also tend to arrive with the onset of winter.

Seasonal and temporary employees are a great asset during the holiday season. However, common labor violations tend to follow, and may include an employer’s failure to pay overtime hours, failing to pay wages for time worked, and even failing to provide breaks and time off where required.

Seasonal employers need to be on their toes, keep impeccable records, and always be mindful of the status of all employees. Employers can form better practices and reduce holiday risk exposure by following a few simple tips:

  1. Yule be sorry if you don’t share rules concerning hours and wages with seasonal employees from the get-go.

    In order to lessen the risk of confusion, employees should be told upfront what to expect in terms of scheduling. While the Fair Labor Standards Act (FLSA) imposes no restrictions on the scheduling of employees, with the exception of the Child Labor provisions, employers should inform employees if work hours are subject to last minute change. The FLSA does not limit an employer's ability to change an employee’s work hours without giving prior notice or obtaining the employee’s consent. Employers, nevertheless, should be aware of individual employment contracts or employment handbooks that say otherwise. Likewise, your state or locality (e.g., Oregon, Pennsylvania, Washington, New York City, and San Francisco) may now require you to post schedules, as well as changes, well in advance.
     
  2. Time to spruce up your knowledge of weekend and holiday pay!

    Seasonal and temporary employees are generally hired when the demand for staffing and work hours are at their highest. The FLSA does not require extra pay for weekend or night work; however, employers should be wary of weekend and night shifts which roll into overtime hours (more about those below). Moreover, employers should clearly communicate to seasonal employees who do work during peak holiday seasons that the FLSA does not require payment for time not worked, including federal holidays.
     
  3. Don’t fir-get about overtime hours!

    Most seasonal employees are covered, nonexempt employees. The FLSA requires overtime pay for these employees after an employee works over 40 hours in a single workweek. Except for certain (rare) types of employees, comp time is not an option. Overtime pay is calculated at a rate of not less than one and one-half times the employee's regular rate of pay. Employers should be aware of any exceptions that may apply as some states have enacted their own overtime laws. Should both federal and state overtime laws apply to a given employee, the employer should pay according to the higher rate of applicable pay.
     
  4. Employees driving in winter weather is snow laughing matter!

    Although most people generally associate the holiday season with a winter wonderland, this type of weather can create hazardous road conditions. Employers should promote safe driving behavior, especially for temporary or seasonal employees who may not be familiar with the seasonal work commute. Likewise, a good practice for employers is to recognize the hazards of winter weather driving and consider training for employees required to drive in winter weather as part of their job duties.
     
  5. But wait—there’s myrrh. Record keeping is a must.

    Every employer covered by the FLSA must keep certain records for each covered, nonexempt worker, including accurate information about the employee and data about the hours worked and the wages earned. There is no specific form required by the FLSA, but employers should have the required information readily available in a useable format. With seasonal employees coming and going, the holidays are a great time to improve and fine-tune your company’s recordkeeping. The following is a listing of the basic records that an employer must maintain according to the Department of Labor:
  • Employee's full name and social security number;
  • Address, including zip code;
  • Birth date, if younger than 19;
  • Sex and occupation;
  • Time and day of week when employee's workweek begins, hours worked each day, and total hours worked each workweek;
  • Basis on which employee's wages are paid;
  • Regular hourly pay rate;
  • Total daily or weekly straight-time earnings;
  • Total overtime earnings for the workweek;
  • All additions to or deductions from the employee's wages;
  • Total wages paid each pay period; and
  • Date of payment and the pay period covered by the payment.

A round of Santa-plause to the holiday employer who consults experienced counsel when seeking advice regarding temporary and/or seasonal employees. If you need help to plow through your local labor laws, visit our Labor & Employment Practice page to find an attorney in your area.