Many companies hire more “seasonal” employees in the summer than the winter, or vice versa. These include summer camps, ski hills, landscaping companies, and snow-plowing services among many others. Often the workers return every season and work a different job in the off-season. Questions arise as to whether an employer needs to terminate the workers at the end of the season, and then go the entire re-hire process again at the beginning of the next season, or whether the employees can stay on an inactive or “layoff” status. The answer is mixed, depending on what legal requirement is involved.
Is a new I-9 (Citizenship and Immigration) Form required every season?
No. Federal law requires all employers to complete Form I-9 to verify the identity and employment authorization status of all individuals hired in the U.S. Employers must complete a new form when a “hire” takes place. A “hire” has not taken place if (1) the employee is continuing in their employment and (2) if there is a reasonable expectation of employment at all times. 8 C.F.R. § 274a.2(b)(1)(viii). An employee is considered to be “continuing in their employment” when the employee is a seasonal employee. 8 C.F.R. § 274a.2(b)(1)(viii)(8)(A)(8) (“An individual is continuing in his or her employment in one of the following situations: . . .[a]n individual is engaged in seasonal employment.”) Therefore if the employee expects to return the next season and does return, a new I-9 is not required. If a company terminates an employee, and it is not expected that they will return, but circumstances change and the employee ends up returning, it should ask for a new I-9.
Is a new IRS Form W-4 required every season?
No. Generally a Form W-4 remains in effect until the employee provides a new one. It is not required that an employee update the form annually or every season, even if an employee is terminated and then re-hired. It is recommended, however, that employees review their W-4 at least once a year and it is a best practice for the employer to offer them this opportunity.
Is a new earnings statement (Minn. Stat. § 181.032) required every season?
Yes. The Minnesota Department of Labor and Industry has answered this question in an on-line Q & A as follows:
“What is the threshold of a new hire for purposes of the written notice requirement? Are seasonal employees included? If an employee works seasonally, are they a new hire when they return?
Employers are required to provide the written notice to all employees at the start of employment, which includes seasonal employees. If a seasonal employee’s employment ends and the employee is hired again at the beginning of the next season, the employee must receive the written notice at the start of employment for the next season.”
A new earnings statement is also required whenever the rate of pay changes so if pay increases from season to season, or at any time, a new statement would be required on that basis as well.
Are new background checks required every season?
It depends. Whether new background checks are required depends on what authority requires them in the first place.
Do Seasonal Employees Count under the Family Medical Leave Act (“FMLA”)
It Depends. The FMLA applies to employers who employ “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” Therefore if a company does not have over 50 employees for a period of 20 weeks, which is about five months, it would not be covered.
Are employees eligible for Minnesota unemployment insurance at the end of the season?
Yes. In general, a seasonal worker who is laid off may apply for and potentially obtain unemployment benefits just like any other terminated employee so long as they have earned sufficient wage credits and meet other criteria. Minn. Stat. § 268.035, Subd. 4. Employees who were “engaged in coaching or participating in sports” are not eligible, however, if they were previously employed in the prior season during the period between two successive sport seasons, or similar periods and there is a reasonable expectation that the worker will be employed in the following season or similar period. § 268.085, Subd. 11.
Is a new Employment Agreement or Confidentiality Agreement required each season?
No. Neither a formal employment agreement nor a confidentiality agreement is required by law. If a company elects to utilize either or both forms of an agreement, it should simply recite in the agreement or agreements that the terms apply indefinitely unless modified in writing and acknowledge that the employee’s work is seasonal and recurring (but at-will).
Is it necessary to get a new signature on the handbook or procedures each season?
No. If a company updates or changes its handbook or policies, however, as it will likely do for next season, it should obtain and keep a signed acknowledgment from all employees of the new, revised handbook.
What a Company tell employees at the end of the season?
A company should have a standard letter or email to send to seasonal employees at the end of the seasonstating something like the following:
Our season officially ends on [date] and you will be laid off as of that date. You not be expected to provide services and will not be paid, after that date. You will also not be covered by worker’s compensation or any other types of benefits and will not receive any other compensation. We hope and expect that you will return to work for us next fall/spring. If you know that you will not be able to return or do not intend to return, please let _____ know as soon as possible so that we may fill the position. If you have any questions about returning equipment, outstanding expense reimbursements, or anything else, please contact __________. Thanks again!
Many employment laws acknowledge the reality of seasonal employment and provide guidance accordingly. This is not an exhaustive list, however. There is a general understanding that a “termination” of employment is permanent, and a “layoff” is a termination with an expectation, but not, guarantee of returning. That is not a legal distinction, but term “layoff” may be appropriate when it comes to the end of the season.
About the Author
V. John Ella is a Minnesota employment law attorney. He can be reached at 612.455.6237 or firstname.lastname@example.org. Trepanier MacGillis Battina P.A. is a Minnesota business law firm located in Minneapolis.