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By Gayle Cinquegrani
Dec. 9 — Retail employers that hire seasonal workers during the busy holiday shopping season should treat them the same as permanent workers.
That's the advice Jeffrey Ruzal, a senior counsel at Epstein Becker Green in New York, gives his retail clients.
“I recommend to all retail clients that they take all steps to treat the seasonal workers as they do their regular, full-time workers,” he told Bloomberg BNA Dec. 8.
“The employment laws are indiscriminate with regard to whether a worker is seasonal or permanent,” according to Ruzal, who said he represents “a number of household-name retail clients,” including both large department stores and smaller boutiques. “The employer should not shortchange the process because the seasonal worker may only be working for a few months,” he said.
“It's important to implement the same policies, rules and regulations throughout the workforce for both permanent and seasonal workers so the employer is not arming the seasonal worker with a charge that he or she was not treated in a like manner, which could give rise to a claim of discrimination,” Ruzal said.
He stressed that the onboarding process should ensure that each seasonal employee “has been given the same access to grievance procedures.” He cautioned that “attrition is probably higher” among seasonal workers than permanent ones, which gives rise to “potential lawsuits by disgruntled employees.”
To decrease the likelihood of problems, employers should avoid taking shortcuts in the hiring and training process. Employers rushing to find salespeople to fill extended store hours may think they lack the time to screen or train a seasonal employee thoroughly, but he said “it makes sense to absorb those extra [screening and training] costs and to provide a basic level of orientation so everyone's on equal footing and the employer can better protect itself.”
For example, an employer that normally uses background checks and personality assessments as part of its screening process should use them for seasonal workers as well. “You never know what a worker could do if he's not properly screened,” Ruzal said. Thoughtful employers might want to use a more comprehensive process so they know more about who's being hired, he said.
Conducting the normal screening process for seasonal hires also makes it easier to retain them and transition them into the regular workforce after the busy season ends. Ruzal warned that the screening and training of a seasonal worker turned permanent employee may be overlooked if it's not done when the person is first hired.
Seasonal workers aren't the only employees who may need training. Retail companies also should give supplemental training to their front-line managers in “how to work with and manage the seasonal workforce,” Ruzal said. “It helps protect the company,” he said.
Such training could remind managers about “the rigorous I-9 process” required “to make sure that the worker is authorized to work” in the U.S., Ruzal said. It could also teach them to deal appropriately with seasonal workers' requests for time off to observe their religious customs, an issue likely to arise during the holiday season.
Seasonal retail employees are likely to be hourly workers, so it's important for the employer to maintain “very accurate records,” Ruzal said. A manager who has hired a large group of seasonal employees to work in a bustling store may not even recognize them, so “it's critical that employers maintain the same record-keeping method for seasonal workers as utilized for regular staff, which is usually a time clock or a punch clock or a biometric clock,” Ruzal said. “Managers cannot rely solely on a schedule” to keep track of the hours actually worked, nor should they try to record work hours using “pen and paper,” he said.
On-call scheduling, a practice by which managers schedule employees' work hours shortly before the beginning of a shift based on anticipated need for their services, is another thorny area. Ruzal reminds his retail clients they may have to pay an employee who has to “wait by the phone” to find out if he needs to report to work on short notice if the employee is precluded from doing anything else with his time.
Whether payment is owed “depends on the level of restriction,” he said, but on-call scheduling “is a business model that's potentially suspect.” An employer that uses on-call scheduling “is at least susceptible to the argument that [the employee] should be compensated for the on-call time because he had to check in in a timely manner.” Many large retailers have “ceased their on-call practices” because of this risk, he said.
Ruzal said retail employers also must remember their obligations to permanent employees when hiring seasonal workers. In retail establishments where permanent workers are represented by a union, the use of a seasonal workforce is likely to be “of great concern to the unions.” They don't want their members to be compromised by a seasonal staff, he said. Union contracts generally spell out the terms under which employers have the right to add seasonal workers.
Camille Olson, a partner in Seyfarth Shaw's Chicago office, also stressed the need for companies to be consistent in their onboarding process for seasonal workers.
“[M]ake sure that whatever you're deciding as a company, the managers are aware of and are implementing,” she told Bloomberg BNA Dec. 9. “You're hiring because there is an immediate need, which is [already] taxing the resources of a supervisor,” but “they shouldn't be making the decisions at the local level,” she said. “The more resources that can be provided to managers, the better,” she said.
“There are some fixed costs in the hiring process that aren't going to be lower because the person is only going to be there a few months,” Olson said. The relationship between seasonal workers and the employer is “not as deep” as the one the employer has with its permanent workers, so seasonal workers “may be less interested in listening,” she said. “Your rules and regulations may not be as absorbed,” she added.
To contact the reporter on this story: Gayle Cinquegrani in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Karen Ertel at email@example.com
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