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Holiday Hiring — Don’t Get a Lump of Coal from the DOL

As retailers begin to light up big Christmas trees, play merry carols, and otherwise prepare themselves for a busy and festive gift-giving season, they and other employers may onboard seasonal workers to help with the holiday rush. If you’re one of those employers, here are a few key reminders to stay on the U.S. Department of Labor’s “nice” list this season:

Onboard with care. Given the rush of the holiday season, it can be tempting to bring a new employee on without jumping through the normal hoops. Though onboarding may be streamlined, make sure to keep the essential procedures in place. Verify that the new employee is legally permitted to work in the United States; run the same background check you would on a regular employee; follow applicable laws regarding the hiring of minors; and train the seasonal employee on your critical policies and procedures, including how to properly record time, report injuries, and report discrimination, harassment, and retaliation.

Don’t misclassify. Seasonal employment is still employment. Especially if a worker is doing a job that a regular employee would be expected to do, be very careful in deciding to treat the worker as an independent contractor instead of as an employee for compensation and tax purposes.

Communicate employee’s at-will employment status clearly. Though you may expect a seasonal employee to be with the company through the end of January, be sure that the employee knows and understands his or her employment may end before then. During the onboarding process, communicate clearly that either you or the employee may terminate the employment relationship at any time, with or without notice, and for any legal reason or no reason at all. 

Meet your usual pay and benefit obligations. The FMLA will generally not apply to your seasonal employee. The Affordable Care Act will only give rise to benefits if the employee works more than 30 hours per week for a period longer than 120 days. But, outside of the FMLA and ACA, most employment laws will apply to your seasonal employee. The regular and seasonal employee need not be paid the same. But make sure to pay the employee minimum wage and overtime in accordance with the Fair Labor Standards Act, to pay the employee at your regular pay intervals rather than at the end of the season, and to provide benefits in accordance with your plans.

Welcome the seasonal employee with cheer — but avoid litigation that could last long after the holiday season has ended.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.