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Partner and associate, respectively, Fisher & Phillips LLP, Portland For many Maine businesses, the arrival of spring also means it’s time to begin hiring seasonal workers for the busy summer months. Hiring temporary seasonal employees can present some substantial legal traps for unwary Maine employers. Below are six pitfalls to avoid.
Verify that seasonal employees are legally permitted to work in the United States. Employers must treat seasonal employees in the same way they treat regular employees by verifying that they are legally allowed to work in the United States. Employers should be sure to complete the Form I-9 and E-Verify even for seasonal employees.
Be aware of restrictions related to employment of minors. Under federal and state law, different rules apply to the employment of minors than apply to the employment of adults. For example, minor employees are restricted from working in certain hazardous occupations and are restricted in the hours they can work. In addition, Maine law prohibits minors from working alone in a cash-based business such as a concession stand.
Carefully assess any decision to classify a seasonal worker as an “independent contractor.” Businesses often misclassify employees as independent contractors and in the process open themselves up to significant potential liability. This temptation is often especially compelling for seasonal employees. Employers should be sure to avoid designating a seasonal worker as an independent contractor without first determining that the circumstances legally justify such a classification.
Determine whether your business is required to pay employees overtime. Generally, the federal Fair Labor Standards Act and similar state law requires that employers pay non-exempt employees one and one half their regular rate of pay for any hours worked in excess of 40 in a workweek. Both federal and state law, however, exempt certain individuals and businesses from overtime requirements. Under Maine law, for example, certain summer camps do not have to pay overtime to employees who are counselors, junior counselors or counselors-in-training.
Evaluate whether hiring seasonal employees triggers additional legal obligations. Most federal and state employment laws only apply to businesses that employ a certain number of employees. Only businesses employing at least 50 people for a 20-week period in a year must comply with the federal Family and Medical Leave Act. Small businesses should pay attention to whether hiring seasonal employees will increase their total number of employees enough to trigger additional legal obligations.
Take care when hiring unpaid interns. Under the federal Fair Labor Standards Act, there are narrow circumstances under which a business can hire an unpaid intern. In general, an unpaid intern must be doing work primarily for his or her own educational benefit, and not for the benefit of the business. If the intern performs routine work of the business and the business is dependent on that work, the worker is probably an employee and must be paid minimum wage and overtime.
In addition, businesses should clearly inform seasonal employees that their employment is temporary. Employers that carefully assess their seasonal hiring practices can take great strides toward protecting themselves from liability. CORRECTION The photo of “J.” Lawrence Dwight Jr. was mistakenly paired with the bio of Eric Stinneford in a May 2 story about the state’s new forecasting commission, “New panel sees slow rebound.” We regret the error.
Pitfalls to avoid in hiring seasonal employees
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