Spring is fully upon us and summer is not far away. For municipalities, park districts, and other units of local government, this is the hiring season for employees that we are accustomed to call “seasonal employees”. But the term “seasonal employees” takes on different meanings depending upon the context in which it is used, and sometimes the context is such that the meaning is entirely different than we might expect.
Let’s start with the Illinois Public Labor Relations Act (the “IPLRA”). Under the IPLRA, there are no “seasonal employees”. The closest term to “seasonal employees” in the IPLRA is the term “short-term employees”. Short-term employees are employees who are hired for two calendar quarters or less and have no expectancy of recall or rehire for any subsequent period of time. Employees who meet this definition are excluded from an appropriate unit for collective bargaining purposes. Employees who do not meet this definition (such as employees who are hired seasonally but who have a reasonable expectancy of being rehired for the next season) are eligible to be included in a bargaining unit as “part-time employees”. Thus, an employer may have some “seasonal employees” who can be included in a collective bargaining unit and others who cannot.
Under the Affordable Care Act, the concept is even more confusing. Under the ACA, there is a difference under the ACA between “seasonal employees” and “seasonal workers”. “Seasonal workers” is a concept that is used in the determination of whether an employer is a “large employer” and thus required either to offer health insurance to full-time employees and their dependents or pay a tax for not doing so. Under the “seasonal worker exception”, if an employer’s work force exceeds 50 employees on 120 days or less during a 12-month period and the employees employed in excess of 50 during that 120-day period are seasonal workers, then the employer is not a “large employer” for ACA purposes. “Seasonal workers” for this purpose are workers who perform services on a seasonal basis and retail workers who perform services during holiday seasons.
Second, the ACA uses the term “seasonal employees” in a different context than applies to “seasonal workers”. “Seasonal employees” are defined by ACA Regulations as employees in positions for which the customary annual employment is six months or less. Unlike “seasonal workers”, which is used in the determination of large employer status, the term “seasonal employees” is used in connection with employers that are already determined to be large employers. Thus, if a large employer has a complement of “variable hour employees” or “seasonal employees” that cannot be classified definitively as full time employees, that employer may use a “look-back/stability period” analysis to determine whether those “variable hour employees” and “seasonal employees” must be classified as full-time for ACA purposes. If the employer then determines after an initial measurement period that an employee classified as a “seasonal employee” worked an average of less than 130 hours per month over that initial measurement period, the employer is entitled to classify that employee as less than full-time for purposes of the stability period that follows the measurement period.
If you’re confused, don’t worry. For now, just remember that the employees that you call “seasonal employees” are not necessarily the same as “short-term employees”, “seasonal workers”, or “seasonal employees” under the IPLRA or the ACA.