Most people resign themselves to putting on a few extra pounds during the holiday season. But waistlines are not the only things that experience a temporary holiday bulge. Businesses also undergo a transitory expansion, fueled of course by the holiday surge in consumer demand. As one would expect, to meet that demand, businesses must hire additional temporary (or “seasonal”) workers. This phenomenon, however, can be fraught with legal perils. Employers must therefore take care not to let the visions of extra profits dancing in their heads blind them to new sources of potential liability. The pitfalls arise from a few different situations, but the good news is that being proactive about your holiday hiring can forestall the most common of these problems.
Many employers rely on staffing companies to supply them with temporary help. But before dashing off to a staffing agency, you should be aware that the law will regard the employee of the staffing company as your employee too (as a so-called joint employer), so any violations of employment laws ( including wage and hour laws) perpetrated by the staffing company become your violations as well. Since it’s impossible for companies to ascertain whether a staffing company has been naughty or nice, companies wishing to mitigate this liability could insist on an agreement with the staffing company that, for starters, ensures workers do not perform off the clock work, that they receive their legally-compliant meal periods and rest breaks, that their hours are being properly recorded, and that non-overtime exempt workers are paid correctly for extra hours. Employers also should secure an indemnity provision from the staffing company in the event of legal action regarding holiday hiring that would hold the employers harmless and allow for the defense of any legal claim.
Properly training new workers in a short amount of time presents another challenge. Employers should familiarize temporary workers with the company’s policies and practices, including its policies against sexual and other forms of harassment, meal and rest breaks, and timekeeping (i.e. clocking in and out of the company’s electronic timekeeping system). The latter considerations are important, as the law affords temporary workers the same wage and hour protections as permanent employees, including minimum wage and overtime. These workers are also covered by the same laws prohibiting discrimination on the basis of age, sex, and other protected categories. Finally, to the extent any temporary workers are under 18 years of age, there may be state and local rules for employing such minors.
There may be nothing you can do to avoid the bleak and bitter new-year drudgery of extra gym time to reverse the pounds added in the holiday season. But there’s nothing more bleak and bitter than litigation from holiday hiring. By following the tips outlined above, employers can greet the new year without being haunted by the ghosts of past hiring practices.