Seasonal employees and overtime pay

Q. What are “seasonal employees"? Is it true that an employer does not have to pay them overtime?

A. The term “seasonal employees” is generally used to refer to workers employed in industries that are cyclical and, thus, do not have continuous year-long business schedules. Other than agricultural (which is its own world when it comes to employment law), there is an amusement/recreational exemption that certain industries may use.

The basic idea is that these businesses do not operate year round, so most of their earnings must come in a relatively short period of time. That may mean long hours for employees.

The test is twofold: (1) Your business must be “amusement and recreational” as that term is used and (2) your dates of operations or your earnings during the year must reflect your business’s seasonal nature.

If you are in the amusement/recreation business, to qualify for the overtime exemption, you must either not operate more than seven months during the calendar year, or your average receipts during any six-month period of the prior calendar year must not exceed one-third of its average receipts for the other six months of the year.

Not all businesses that might seem to be recreational or amusement qualify. For instance, courts have ruled that fireworks vending stands do not qualify for the exemption.

Like many wage-and-hour issues, this probably is not an exemption you want to tackle alone. If you think it might be applicable, get professional legal advice. Being “close, but no cigar” can be very costly.