Tips on avoiding a holiday hiring hangover

Anne Milligan

Poor hiring decisions this month could easily turn a profitable holiday season into an expensive litigation hangover that lingers long after the New Year. In today’s era of widespread employment litigation – especially in the employee-friendly climate of the Pacific Northwest – employers must be even more conscientious of the legal liabilities and practical consequences this time of year.

Companies should assess their seasonal hiring practices before the season is in full swing to ensure compliance with various state and federal laws. There are four guidelines employers should review each year:

  1. Verify that employees are legally permitted to work in the U.S.
  2. Evaluate whether hiring seasonal employees triggers other legal obligations.
  3. Carefully review application materials.
  4. Interview the applicant thoroughly.

Additionally, there are a few more potential pitfalls to consider when hiring seasonal workers.

Employment of minors

Many applicants for seasonal jobs are young adults looking to fill holiday breaks with temporary positions. Hiring staff under the age of 18 comes with specific labor laws to follow. Washington state and federal laws spell out which jobs are prohibited for minor workers and what hours minors may work.

For instance, in Washington, all minors under 18 are prohibited from regular driving to make deliveries, working in freezers and meat coolers, and working alone past 8 p.m. without an adult present throughout his or her shift. Minors under 16 cannot operate a car at all, cook or bake, and they cannot load or unload trucks. Work hours for a minor are limited by day and week based on age, and whether or not it is a school week.

As always, it is a good practice to review applicable laws for compliance and corporate policies when employing minors for seasonal employment.

Seasonal employees as independent contractors

Businesses often misclassify employees as independent contractors, and in the process, open themselves up to significant liability. This temptation is especially compelling for seasonal employees. Most part-time retail positions would be unfit for independent contractor status and could create future legal liability. For example, independent contractors, as defined by the IRS, must provide their own supplies and equipment, control their own hours of employment and, most importantly, control the manner and means by which the services are provided. Therefore, employers should avoid designating a seasonal worker as an independent contractor before confirming he or she fits into that classification.

Overtime requirements

Generally, the federal Fair Labor Standards Act and Washington state law requires non-exempt employees are paid one-and-one-half his or her regular rate of pay for any hours worked in excess of 40 in a workweek. Both federal and state law, however, exempt certain individuals from overtime requirements.

Retailers may require long shifts when understaffed, but managers need to review corporate policies and seasonal employees’ status under federal and state law to determine whether he or she are exempt from paying overtime to employees or other wage and hour issues like meal and rest period requirements, which commonly lead to legal claims.

Implementing this prep-work in advance can help minimize unnecessary “to-dos” this holiday season and start the New Year right.

This Tip of the Week was written by Anne Milligan, an associate in the Portland office of the law firm Fisher Phillips. She provides advice and counsel to employers in areas such as employment discrimination, discipline and discharge, and wage and hour litigation in Oregon and Washington.

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