Employers are facing extreme difficulty filling job openings, and this does not appear likely to change any time soon. In response, many employers have begun employing employees in less traditional arrangements such as temporary and part-time options. However, these trends have exposed many employers to new challenges in remaining compliant with local, state, and federal employment laws.

Though the challenging circumstances of the current labor market require employers to adapt and provide employees with greater flexibility in order to gain the talent they require, it is essential to ensure they remain compliant with applicable laws. Here are some of the most significant concerns employers should keep in mind.

Pre-Employment Screening

Employers have been struggling to attract applicants nationwide, and in order to do this, many have attempted to reduce barriers to employment. This has taken the form of reduced educational requirements, criminal screening, and drug testing. However, just because these have been eliminated at the pre-employment stage doesn’t mean that they cannot be performed later.

However, should employers perform these steps at a later stage, there are additional compliance issues to keep in mind. Drug screening can be performed in compliance with state laws in situations where reasonable suspicion is present, and an employee’s criminal history may be considered when it relates to an employee’s job duties and responsibilities. Employers should keep in mind that these inquiries must be performed in a completely neutral manner, and discrimination cannot play a role in the process.

Further, the Fair Credit Reporting Act requirements must be followed carefully, including the required notifications. In cases where drug screening is to be performed, the business-related reasons should be documented carefully.

Laws Pertaining to Part-Time and Temporary Workers

Part-time and Temporary workers are typically entitled to the same protections afforded by federal law as their full-time counterparts. This includes anti-discrimination provisions and wage-and-hour laws.

Part-time and temporary workers are still entitled to reasonable accommodations for religious and medical reasons. However, the threshold for what may equate to a reasonable accommodation may vary. For example, some courts have found that temporary employees requests for a leave of absence may not be reasonable because it would require that the company place a second temporary employee just to fill the position.

In some cases, laws may not apply to these workers, such as the Family and Medical Leave Act which does not apply to temporary workers. Under this law, employees must meet a minimum hour requirement and have been employed for at least one year to qualify for protected leave. Unfortunately, what laws are applicable to these employees is not always a simple matter to determine, and employers must consider carefully what laws may apply whenever issues come up.

Independent Contractors and Misclassification

In some cases, employers have chosen to hire independent contractors instead of turning to temporary workers or part-time workers. Though this policy can be a completely legitimate strategy, it is important to ensure that these workers are classified correctly.

Misclassification of employees has become an increasingly central focus of attention for state and federal governments, particularly as the gig economy has continued to rise. As a result, the potential liabilities associated with misclassification have, in turn, become significant. 

Several companies currently associated with the gig economy face multi-million-dollar lawsuits claiming that they have misclassified their workers as independent contractors. Further, the constantly shifting state and federal laws framework has made it difficult to determine which workers truly qualify as independent contractors.

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