Welcome to Simon Paschal Says. I’m Paul Simon, an employment lawyer at Simon Paschal, PLLC. With the upcoming holiday season we’re going to discuss issues employers face with seasonal or temporary employees. The most common issue we see with seasonal or temporary employees has to do with how employers pay the worker. Oftentimes employers believe that they do not need to pay a seasonal or temporary worker as a W-2 employee because they’re only working a few weeks or months. However, according to the IRS, employer must issue a W-2 form to any employee that earned any amount of wages and had income, social security and Medicare taxes.
Basing in the decision to classify a seasonal or temporary worker as an independent contractor and not provide them a W-2 will generally run a foul of both the IRS and DOL regulations. The short period of work is only one factor and the independent contractor versus an employee test, which was a test that we discussed in a prior video. For your seasonal and temporary workers, you should consider them an employee and follow the DOL regulations regarding a minimum wage and overtime unless the employee is an exempt employee and receiving salary.
Other questions we get from employers for gardening, seasonal and temporary workers or whether the employee is considered full time or part time, whether or not the employee must receive benefits and how many hours can the employer have the employee work. With regard to the full time versus part time question. This is generally left to the employer to define in their handbook or their policies. The fair labor standards act or the FSA which governs how employees must be paid, does not define full time or part time and doesn’t affect any of the FSA laws. Now a seasonal or temporary worker can factor in with regard to your headcount with regard to the affordable care act or Obamacare, so you should consider that when determining whether or not you actually want to hire a seasonal or temporary worker and if that’s going to affect your head count for the ACA.
The full time versus part-time question generally implants, whether an employee is eligible for benefits, however. Most employers put in their benefits policy, an employee is not eligible for any benefits, including PTO, vacation, paid time off, sick days until they’ve been employed for at least 90 days. Some employers will even separately categorize their seasonal or temporary workers to distinguish them from part time employees that work year round for you.
The last common question received, is how many hours temporary seasonal employees are allowed to work. Now, the FSA does not limit the number of hours per day or per week the employee aged 16 years and older can be required to work. However, overtime compensation requirements can’t apply for hours worked over 40 in a work week. So in terms of the amount of hours worked, it’s really up to the employer but obviously keeping in mind, what’s healthy for the employee and the workforce in terms of a productive workday. So thanks for turning it in to Simon Paschal Says, we’ll see you guys next time.