Clarifying Misunderstood Terms – Seasonal Workers and Seasonal Employees

Clarifying Misunderstood Terms – Seasonal Workers and Seasonal Employees

The summer is fast approaching and in California this means the agricultural season will soon be in full swing. Being located in a state that is so prominent in agriculture, I have heard of several “interesting” (a more diplomatic way of saying noncompliant) strategies being implemented by some in the industry. Part of the confusion is being generated from two terms with distinct meanings under the Affordable Care Act (ACA): seasonal workers and seasonal employees. The purpose of this article is to review the difference between seasonal workers and seasonal employees and to explain when each definition is applicable to an employer.

A seasonal worker is an employee who performs labor or services on a seasonal basis. The final regulations state this definition includes retail workers employed exclusively during holiday seasons and workers covered by 29 CFR 500.20(s)(1). A worker is covered by 29 CFR 500.20(s)(1) if ordinarily, the employment is of the kind exclusively performed at a certain period of the year and which, from its nature, may not be continuous or carried on throughout the year. A worker can still be covered by 29 CFR 500.20(s)(1) (and thus still be considered a seasonal worker) if the worker moves from one seasonal activity to another even if the worker is employed during a major portion of the year. Employees with comparable positions to the two examples included in the final regulations can also qualify as seasonal workers so long as the employer is making a reasonable, good faith interpretation of the term.

Seasonal workers are only applicable for the seasonal worker exception which determines if an employer is an Applicable Large Employer (ALE). Only employers who are ALEs have to comply with the Play or Pay Mandate. For the seasonal worker exception to apply an employer must satisfy two requirements:

     (1) The employer must not be in excess of 50 full-time employees (including FTEs) for more than 120 days in the preceding calendar year; and

     (2) The employees employed during the period that is no more than 120 days who cause the employer to exceed 50 full-time employees (including FTEs) must be seasonal workers.

If these conditions are satisfied, the employer will not be an ALE despite averaging 50 or more full-time employees (including FTEs) throughout the preceding calendar year. The seasonal worker definition is not relevant for any other determination under the ACA.

A seasonal employee is defined in the final regulations as “an employee who is hired into a position for which the customary annual employment is six months or less.”   The preamble to the final regulations provides further context to the definition saying the period that is six months or less should begin in approximately the same part of the year, such as summer or winter.

The seasonal employee definition can be broken into the following two factors:

     (1) The position must typically last for a period of six months or less; and

     (2) The position must begin in roughly the same part of the calendar year.

The seasonal employee is unique compared to part-time, variable hour, and full-time employees (the only other classification options for new employees) because it does not factor in an employee’s hours of service. A seasonal employee could work 80 hours a week and still be classified as a seasonal employee so long as the two factors discussed above are true. If an employee is classified as a seasonal employee, the employee is placed into an initial measurement period and treated the same way as a part-time or variable hour employee.

Employers need to be careful with the distinction between seasonal workers and seasonal employees. Remember, seasonal workers are only relevant for determining if an employer is an ALE. Seasonal employees are only relevant when determining if a new employee can be placed into an initial measurement period. However, make sure an employee classified as a seasonal employee meets the two criteria discussed above. Currently, there are no correction procedures for misclassified employees so an employee who is misclassified as a seasonal employee could trigger huge fines for an employer.


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