Michael R. Marra of Fisher Phillips speaks of seasonal hiring.

A busy holiday season or fashion week can garner the hiring of hundreds of temporary workers at even the most exclusive fashion brands. In fact, a simple search on a job site can turn up more than 1,100 seasonal sales associate job listings for fashion brands, retailers and department stores.

Scaling up workforce during the holidays, adding extra hands during seasonal fashion shows and the like, is a necessity for most fashion brands when calendar demands are heavying. Aside from seasonal help, the alternative is overstaffing year-round which is impractical and expensive.

But seasonal hiring does warrant legal and practical risks that must be addressed in advance, so the brand can focus on increasing sales and executing their missions with ease. Luckily, overreliance on seasonal staff, and the accompanying legal cautions, can be mitigated with the following hiring considerations.

Consider Staffing Agencies

Working with staffing agencies that have expertise in the fashion and luxury retail markets may ease any pains in the seasonal hiring process. Many of these agencies can provide experienced retail personnel, who are accustomed to seasonal, temporary workflows. These agencies may also provide valuable ancillary services, including background checks, drug screens, payroll, unemployment contributions and workers’ compensation insurance. If you utilize those agencies, it is important to confirm which services are included, and to be clear about how much responsibility the agency takes for the workers. For example, determine whether the workers will be employees of the agency or the brand, or both, and whether the agency will indemnify you for liabilities created out of the relationship.

Although the details of an effective agency agreement necessitate further explanation, suffice it to say you will be paying a meaningful fee for the agency’s services, so you will want to be sure the arrangement considers important contingencies. And if your brand prefers to undertake the hiring of seasonal employees on your own terms, read on.

Understanding Employer Obligations Across the U.S.

To comply with the maze of different state and local laws that apply to background checks, employers must understand how both impact their hiring process. Employers may need to consider whether it is appropriate to seek background checks for a given position; whether, and to what extent, questions about criminal history at the application stage are legal, or if offers of employment should be expressly conditioned upon the candidate satisfying a criminal background check.

There are also rules about how checks should be conducted and what factors the employer must consider when evaluating the results of the check. Be aware that many local laws do not permit the use of background checks until after a conditional offer of employment is made. Similarly, to the extent you require drug screening, be sure to do so in compliance with the laws of the local jurisdiction, which will always require candidate permission.

Onboarding, Training and Termination

Prepare written offer letters that clearly outline the expectations of the job, including the likely end date for the relationship. If there is later a dispute with a seasonal employee over the decision to end the employment relationship, the written end date will both serve to set expectations and to limit any potential damages to the extent that the employee claims they were fired improperly.

In addition to anti-harassment training, appropriate onboarding and orientation is crucial to a temporary employee’s success and limiting legal risk. Regardless of the intended duration of the relationship, all employees must be aware of their responsibilities under employee policies with respect to personal conduct, conflicts of interest and other work rules.

Reduce the likelihood that you will violate pay and overtime laws, which are often the subject of costly class action litigation, by making sure new employees understand timekeeping systems, scheduling, meal and rest break rules. Even small errors can lead to significant liability if left unchecked. Make sure that basic expectations, such as workplace attire, are communicated in advance to prevent wasted time, frustration and embarrassment.

Be aware not only of the locally mandated requirements regarding sexual harassment and related policies, but also the value in conducting such training. If a seasonal employee does consider herself or himself to have been a victim of illegal conduct, it is important that the employer informed them initially of their rights and abilities in reporting such an incident. The goal is to clearly state expectations at the outset of employment, educating employees on how to conduct themselves in the workplace, and to limit or prevent legal exposure for brands hiring seasonal assistance.

Understanding Payroll Responsibilities

Especially for seasonal sales employees, be certain that compensation practices are clearly outlined in writing. If employees are eligible to receive sales commissions, be aware that many states require the employer to prepare a written commission plan for the subject employees; in addition, commissions received may impact the rate at which overtime pay is calculated. Thus, payroll for both seasonal and regular employees must be in tune.

Perhaps most importantly the thread connecting each of these key areas is mutual stakeholder awareness regarding seasonal employees and the workflows which identify areas of responsibility.

These stakeholders include personnel from human resources, payroll and benefits, legal, store management, internal communications, operations, marketing, security and sales personnel. All of the mentioned personnel should understand the roles to be played by seasonal hires and the employer’s obligations to them, so that operations will be smooth and conflict rare.

Michael R. Marra is the co-managing partner of the New York office of Fisher Phillips specializing in labor and employment law. 

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