Hiring Temporary or Seasonal Workers?? A Few Considerations

The holidays are approaching and you might be looking for extra staff for your business or workplace.  Even when it’s not holiday season, your business might be cyclical, so you’ll need extra help for a period of time or maybe part-time help. The key is to remember that seasonal, temporary or part-time workers are employees not independent contractors.  Many of the laws and regulations that apply to full-time employees also apply to seasonal or part-time employees.

Here are some things to consider:

Laws that cover harassment, discrimination, and workplace health and safety will apply to your temporary and part-time workers just as they do to the other employees in your business.  These employees are entitled to minimum wage and overtime pay.  As an employer, you are also responsible for appropriate documentation and record keeping.  These employees are not entitled to any special protection and are subject to the same employment considerations as other employees, e.g., at-will status, performance management, etc. 

Here’s a brief list of your obligations and benefits that you must provide to your temporary, seasonal or part-time workers.

• Unemployment Benefits – click here to determine your obligations as a New York employer.
• Taxes/Social Security/Medicare – IRS Publication 15 provides that regarding “federal income tax withholding and social security, Medicare, and FUTA tax purposes, there are no differences among full-time employees, part-time employees, and employees hired for short periods. It does not matter whether the worker has another job or has the maximum amount of social security tax withheld by another employer.” See full text here.  See IRS Guidelines here.
• Workers’ Compensation – Businesses with employees are required to carry Workers’ Compensation insurance coverage through a commercial carrier, on a self-insured basis, or through a state Workers' Compensation insurance program.  Click here for information New York Workers' Comp information.

Misclassification of employees or failure to provide benefits listed above can result in an audit or investigation by the IRS or Department of Labor.  Contact me if you're considering hiring part-time, seasonal or temporary workers or visit my website for additional information. 

Fewer Work Hours - Happy Employees??

In the wake of mounting wage and hour lawsuits and a recent fatality in the industry, Goldman Sachs recently announced the formation of a junior banker task force.  One of the first orders of business was requiring these interns to work saner and "more humane" hours.  These junior bankers are not allowed to enter Goldman Sachs buildings for 36 hours on the weekends (from 9pm on Friday through 9am on Sunday).  The task force, reportedly is also monitoring remote logins to determine wither these junior bankers are working through their weekends or enjoying them (or trying to figure out how to get a competitive edge over their fellow junior bankers).  Goldman Sachs is reducing the hours to make the organization more attractive top college graduates.   

This was considered a revolutionary step for Wall Street and the finance industry.  Even if you’re not a Wall Street firm, there are some real upsides to monitoring the hours worked by interns and junior professionals, trainees in your business as well.  

Let’s Review:

• Work-Life Balance – the overall thinking is that a well-rounded employee is a happier employee.  Happier employees are more productive and more likely to stay with their employers.
• Expand the Talent Pool - Attract Top (perhaps nontraditional) Talent – Many talented prospective employees might not want to work for a business where long work hours are regularly expected or required.  By establishing a culture that values leisure time, you might attract candidates with different backgrounds, experience and training to your organization.  That could lead to its own efficiency and innovation. 
• Control Overtime  costs – assuming that your interns are paid and nonexempt, you will pay overtime for those extensive hours in the office.  Limiting the hours, will limit your costs.
• Minimize Exposure to Wage/Hour Violations – Most interns, junior professional or training positions are non-exempt, i.e., entitled to overtime for weekly hours worked in excess of 40.  Monitoring these hours gives you the opportunity to review the classifications of these individuals and compensate appropriately.

Downsides (few but real)

The decision to control work hours speaks to the culture of the workplace.  The message has to be clear and consistently applied to the identified class of employees.  If managers haven’t bought in, aren’t good communicators or effective implementers, this well-intentioned position might have negative impact on the work environment.  

As you change expectations regarding hours, you should consider changing expectations of results and outputs.  Employees working fewer hours might be less productive.  If you expect employees to work fewer hours but still deliver the same results, you might be dealing with productivity issues not work-life balance and the other concerns mentioned above.  If that’s the case, a different conversation around these adjustments may be necessary.    

What to do

If you’re considering a similar change in work culture, communicate with your managers about your expectations and rationale for this change.  Your managers must communicate clearly with employees and apply these changes consistently.   

Need more information or guidance? Contact me or visit my website.

Religious Accommodations: A Tale of Two Cases

Claims of discrimination base on religion have risen significantly over the last decade. This is likely due to the aftermath of the September 11th attacks in addition to increased immigration as reflected in the workforce.   The EEOC has joined many employees (current and former) in bringing suit against their employers. 

The law requires that an employer or other covered entity must reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business.  In these cases, the employee must show that he or she:  (1) has a bona fide religious belief that conflicts with a job requirement, (2) notified the employer of the belief, and (3) was disciplined for failing to comply with the conflicting job requirement.  If the employee can show these elements, the employer may offer as a defense either that it offered a reasonable accommodation, or could not do so without undue hardship, i.e., more than a minimal burden on the operations of the employer's business.

A Tale of Two Cases

Time off for prayer
JBS USA, LLC recently prevailed against the EEOC in a religious accommodation case.  The EEOC filed a lawsuit in federal court against JBS, a meatpacking company, claiming that JBS failed to reasonably accommodate Muslim employees’ religious practices by denying them unscheduled prayer and meal breaks during Ramadan. The EEOC alleged that JBS’s failure to allow Muslim employees to take unscheduled breaks was unreasonable and discriminatory. 

However, court concluded that JBS had proven that the unscheduled prayer breaks would impose more than de minimus costs on the company.  The unscheduled absence of workers from their jobs would 1) adversely affect food safety and 2) cause an imposition on co-workers who would have to cover for the absent workers.   JBS showed that if a Muslim employee left a production line for an unscheduled prayer break, and the line was not stopped or slowed, the remaining workers on the line might not be able to keep up with required food safety practices. If the line was slowed or stopped, raw meat might be exposed to air and bacteria.   Also, when a Muslim employee took a prayer break, another employee would need to leave his or her own work aside to fill in. Non-Muslim employees would be required to work harder, and under potentially dangerous conditions, as a result of the prayer breaks.  

Based on this evidence, the court found in favor of the employer.


Dress Codes
A federal judge recently found clothing retailer Abercrombie & Fitch liable for religious discrimination when it fired a Muslim employee for wearing her hijab (religious headscarf). 

A&F stated that the employee was terminated for non-compliance with the company's Look Policy.  A&F argued that "its Look Policy goes to the 'very heart of [its] business model' and thus any requested accommodation to deviate from the Look Policy threatens the company's success." The court found that Abercrombie only offered “unsubstantiated opinion testimony of its own employees to support its claim of undue hardship” and that these opinions “were not linked to any credible evidence."

What caused the different outcomes?  
If you cannot demonstrate using objective data or evidence that accommodation will cause undue hardship, you should consider granting the accommodation.  

What can you do?
If an employee notifies you that s/he needs an accommodation for religious reasons, you and the employee should engage in an interactive process to discuss the request and determine possible accommodations   If it would not pose an undue hardship, it may be difficult for you to justify not granting an accommodation.  

You should consider seeking legal advice in evaluating whether an accommodation is reasonable and whether it might result in an undue hardship.  Please contact me with any questions or visit my website.