Limit your employment liability during summer months
Although we look forward to the summer weather, the season can bring with it some particular challenges for businesses in the employment context. Here are a few of those potential areas of concern:
1. Workers’ compensation
An injury may be compensable if it arises out of and in the course of employment, meaning it occurs while and because an employee is working. What does this mean for summer events? An injury that occurs while an employee is voluntarily participating in an employer-sponsored athletic event or team is not compensable. There is no similar exclusion for a social event. The outcome in that context will depend upon factors such as the extent to which the employer sponsors, controls or participates in the activity; whether the employer requires participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or whether the employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life. There might be defenses to such claims based on horseplay or intoxication exclusions.
2. Harassment
Summer parties, particularly where alcohol is served, can be the cause of claims of sexual and other forms of harassment. Employers should think through how summer parties will be conducted and might consider a harassment refresher before the event.
3. Dress codes
These can be challenging to enforce during the summer. Employers who have dress codes should be sure to apply them evenhandedly. Employers should also remember that certain forms of accommodation, such as for religious beliefs, can trump a dress code.
4. Requests for time off
Generally, there seem to be more requests for time off during the summer months. Employers should keep an eye on potentially questionable requests, such as someone who suddenly requests Family Medical Leave Act time on Fridays and Mondays of each week. Any policies pertaining to paid or unpaid time off should be applied consistently.
5. Wage and hour issues for minors
Both Maine and federal law restrict the number of hours minors can work and the type of work they can perform. In addition, there are requirements for maintenance of time records and obtaining work permits from the school superintendent.
6. Seasonal employment
Employers should be aware of the impact of seasonal employment. First, not all seasonal workers are independent contractors so employers must be careful in categorizing them automatically. Second, for workers' compensation purposes, a finding of seasonal employment can result in a reduced average weekly wage. Customarily, workers' compensation defines seasonal as working fewer than 26 weeks of the year, full or part time. The work has to have some relation to the seasons; the focus is on the industry, not the employee's specific duties. Third, seasonal employees might impact the threshold for determining an employer's coverage under various employment statutes and might also have a bearing on whether that employee is entitled to certain benefits. For instance, a seasonal employee is unlikely to be eligible for FMLA leave because under state law the employee has to have worked for the employer for 12 consecutive months; to qualify under federal law, the employee has to have worked during the prior 12 months and for at least 1,250 hours.
7. Unpaid interns
The circumstances under which a business can utilize “unpaid interns” or “volunteers” are very limited. As with independent contractors, simply classifying individuals in such a way does not make it so. Be wary.
Keep these in mind during the summer months so that the warm weather can be enjoyed and not a catalyst to trouble.
Anne-Marie L. Storey is an attorney with Rudman & Winchell in Bangor. She can be reached at astorey@rudman-winchell.com.
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