Don’t Ignore Nuances of Dealing With Seasonal Employees

By Pushor Mitchell LLP
Categories: Blog, Employment Law

A seasonal workforce is very common in economies which are dependent upon naturally occurring commodities. In B.C. seasonal employees make up much of the workforce in (for instance) farming, forestry, orchards, and fishing.

Dealing with these employees in a legally appropriate manner requires knowledge of some specialized employment rules.

Employers sometimes assume that employment laws don’t apply to these employees because of the temporary nature of the relationship. This assumption is mistaken and can result in significant unforeseen liabilities.

The B.C. Employment Standards Act makes no general distinction between seasonal employees and permanent ones. With some exceptions, the usual rules (such as those relating to wages, overtime, statutory holidays, and vacation) apply equally to seasonal workers.

The Act’s rules relating to termination of employment are significantly different for seasonal employees. Employers need not, for instance, observe the notice of termination requirements when an employee is employed for a specific term or for specific work to be completed within a period of 12 months.

The notice of termination rules also do not apply to union members who are employed in a seasonal industry. And, the “group” termination provisions of the Act do not apply to employees terminated as a result of the normal, seasonal closure of an operation.

The Act also creates certain separate rules for farm workers and fishers regarding the minimum wage rate, the calculation of piece rates, statutory holiday pay, overtime pay, and vacation pay.

The specific employment standards rules relating to seasonal employees are too complex and lengthy to list here. Employers should, however, ensure that they are familiar with the rules tailored to these specialized employees.

One of the greatest pitfalls in using seasonal employees is the mistaken assumption that the employment starts fresh each season. Depending upon the circumstances, the employment may be treated by the courts (for the purposes of the common law) or by the Employment Standards Branch as continuous since the first season of employment.

Under the common law this would most likely be the case if a seasonal employee automatically commenced work, season after season, with no real break other than a few weeks off in the winter. In that instance, the courts may view the employment as continuous despite annual layoffs.

If the employment is deemed to be continuous from season to season, then the employee may claim notice of termination (or pay in lieu) on the basis of the total period of employment. This can make a huge difference in the employer’s obligations to the employee upon final dismissal.

The employer can take steps to organize its annual hiring and termination practices to diminish the likelihood that the seasonal employment will be viewed as continuous. Doing so, however, requires diligent attention to the proper steps in establishing a new period of employment each season and terminating it at the end of the season. Employers wanting to implement procedures for this purpose should obtain expert advice on the required steps.

The worst thing an employer can do is underestimate the nuances seasonal employment presents. Understanding how the law treats them is the first step towards effective and efficient use of seasonal workers.