As the end of the year approaches, employers across Texas are bringing on extra help. Retailers, warehouses, delivery companies, and event venues hire thousands of temporary and seasonal workers to get through the holiday rush, many of them through staffing agencies. Too many of these workers assume that because the job is short-term, the usual workplace rules do not apply. That is not true. A temporary job is still a job, and the law still protects the people doing it.
Overtime does not take a holiday. The Fair Labor Standards Act requires most employers to pay non-exempt employees time and one-half their regular rate for every hour worked over 40 in a workweek, as the Department of Labor explains in Fact Sheet #23. That rule applies whether you were hired for six months or six weeks. Busy seasons mean long shifts, and long shifts mean overtime. Watch for common problems: being asked to work “off the clock” before or after a shift, unpaid required training or pre-shift meetings, or an employer averaging hours across two weeks so that a 50-hour week and a 30-hour week look like two 40-hour weeks. Each workweek stands on its own. There are narrow exceptions, such as for certain seasonal amusement or recreational businesses, but most holiday retail, warehouse, and delivery jobs are not exempt.
A label does not decide whether you are an employee. Some employers try to avoid overtime, payroll taxes, and benefits by calling seasonal workers “independent contractors” or paying them on a 1099. What matters is the actual working relationship, not what the paperwork says. If the company sets your schedule, tells you how to do the job, provides your tools or uniform, and your work is part of its regular business, you may be an employee entitled to minimum wage and overtime. The Department of Labor walks through the analysis on its misclassification page. Holiday delivery drivers and gig-style workers are especially likely to be misclassified.
Harassment is not part of the job description. Temporary and seasonal workers are protected from sexual harassment, as well as discrimination and harassment based on race, color, religion, national origin, age, disability, and other protected traits. Temps are often reluctant to complain because they hope to be asked back or hired permanently, and some supervisors count on that silence. Under the EEOC’s guidance on workers placed by staffing firms, both the staffing agency and the company where you are assigned can be responsible for discrimination, and an agency that knows about harassment at a client site and fails to act can share the blame. Texas law adds protection against sexual harassment, covering employers of any size and allowing 300 days to file a complaint with the Texas Workforce Commission. You can learn more about workplace harassment from the EEOC.
Speaking up is protected, too. It is illegal to punish a worker for complaining about unpaid overtime or reporting unlawful harassment. If you raised a concern regarding unlawful conduct and suddenly lost your assignment, had your hours cut, or were told you would not be invited back next season, that may be retaliation.
Because seasonal assignments are short, records matter. Keep your own log of the hours you work, save your pay stubs, and write down the date, time, and witnesses for any harassment.
Working a temporary or seasonal job and think you are not being paid for all your hours, have been misclassified as a contractor, or are being unlawfully harassed? Contact me in Houston or one of my talented colleagues in Dallas or Austin today.