Seasonal Worker Injury
When seasonal worker injury occurs, there can be some confusion about the rights and benefits to which the worker is entitled. Employers tend to take advantage of this to protect their bottom line and avoid addressing job site safety concerns.Defining Seasonal Workers
Seasonal workers are those hired to a position for which the customary employment will last five months or less. MGL Ch. 151A §1 defines a "seasonal employer" as one who, owing to climatic conditions or nature of the product or service, customarily operates all or functionally distinct occupation of the business only during a regularly recurring period or periods of less than 20 weeks for the calendar year.
In general, seasonal employees are hired on a temporary basis during a time of year when there is extra work to go around.
Typical examples include the extra greeters and sales associates hired by retailers around the winter holidays. In the summertime, many businesses hire seasonal workers to help with the operation of swimming pools, camps and recreational facilities that are closed during the colder months. Restaurants and bars may hire seasonal workers as well. Cities and government agencies add seasonal employees in various roles too, typically in the summer.
There are also a fair number of seasonal workers employed at farms, canneries, factories, and warehouses. Many of these employees work long hours under high-pressure conditions. These injuries may include:
- Falls from ladders;
- Machine-related injuries;
- Heat exposure/ exhaustion;
- Farm injuries;
- Workplace violence;
- Lyme disease/ allergic reaction to an insect sting or bite;
Many are hired on a part-time basis, but they are nonetheless entitled to minimum wage, overtime and workers' compensation benefits if they are hurt on-the-job. If an employer hires seasonal workers through a temporary agency, it may be the agency responsible for workers' compensation benefits, but either way, injured workers should have their medical bills covered and a portion of lost wages paid, per MGL Ch.152 § 25A.
Seasonal worker injury cases are unfortunately common because these workers are often:
- Inexperienced/ inadequately trained;
- Not closely supervised;
- Have immigration status concerns.
Most seasonal employees with the state government work in areas of state forests, parks and recreational facilities, the majority between Memorial Day and Labor Day. Some positions are open at other times annually, with long-term positions stretching longer than 90 days and short-term positions being shorter in duration. All seasonal employees who work for the Commonwealth must be at least 18, except lifeguards and summer workers, who must be at least 16. The Massachusetts Municipal Association reports many seasonal maintenance employees to work in and around motorized vehicles and mechanical equipment (i.e., heavy-duty lawnmowers, chainsaws, etc.) with which they are not familiar.
"(We) have seen serious work-related claims related to personal injury from inexperienced users and improperly maintained equipment," the agency notes.
Seasonal workers are distinctly different from "temporary workers," who are often hired by temp agencies to cover for absent employees. That could mean filling in for workers who are on disability or maternity leave, but more generally, seasonal workers fill gaps in the company's workforce that employers aren't looking to fill long-term. Temp employees can work full or part-time and for more than one company. Still, both seasonal workers and temporary workers suffer higher-than-normal rates of injury compared to full-time, year-round employees.
We may see a rise in seasonal worker employment in the coming years, given the federal push for U.S.-based manufacturing, despite a lack of qualified and willing American workers to fill some of those roles. An additional 15,000 visas for temporary seasonal employees was approved in 2017.Injuries Among Young Seasonal Workers
A recent analysis published in the journal Occupational Medicine examined several theories behind why younger workers (between 14 and 24) are twice as likely to be injured on the job compared to older workers in seasonal roles. They surveyed two sets of the seasonal park and recreational workers regarding health and safety behaviors and reported on-the-job injuries.
Young workers represent 14 percent of the U.S. workforce, and most of these are seasonally employed.
Some theories about why they are more likely to be injured include:
- Lack of job training or experience;
- Failure to recognize workplace hazards;
- Factors related to cognitive and physical development;
- Limited ability to communicate effectively with supervisors.
Among workers surveyed, most were females with an average age of 17.8, many of whom reported it was their first job. Seventy percent reported at least one workplace injury over that summer, most being minor scrapes, bruising and strains. A few suffered fractures and concussions. Despite so many injuries, only four individuals reported being hurt.Migrant Seasonal Agricultural and Food Processing Work
In addition to young workers, migrant seasonal farmworkers and food processing workers also face an outsized risk of work-related injuries.
According to the Massachusetts Department of Career Services, seasonal farm workers are those who have worked at least 25 days or part days performing farm work in the last year and have earned at least half of their total income performing farm work and are not employed in farm work by the same employer year-round. A migrant farmworker is one who must travel to do farm work and is unable to return to his or her permanent residence that same day. A migrant food processor is one who has worked 25 days or part days in the last year, earns at least half their income in this field and travels to do this work with the inability to return to their permanent residence in the same day.
These workers are protected by the federal Migrant and Seasonal Agricultural Worker Act, which sets standards for wages, housing, transportation, and injury disclosures.
Like so many young workers, migrant workers are vulnerable to exploitation and may fear reprisal for reporting workplace safety hazards and injuries. This is particularly true if they are undocumented. In Medellin v. Cashman KPA, the Department of Industrial Accidents affirmed the right of undocumented immigrant workers to workers' compensation benefits.Calculating Seasonal Workers' WC Benefits
Massachusetts law provides a specific, formulaic approach to determining the weekly workers' compensation benefits an injured employee is entitled to receive. It's based largely on the worker's average weekly wage.
A key component is ensuring you provide adequate information to be able to calculate this, and that might prove challenging for some seasonal workers because many don't have solid proof of wages.
Seasonal employees' average weekly wages are determined differently than full-time, year-round employees. Massachusetts seasonal worker injury case, Bunnell v. Wequasset Inn, underscored this point, noting the average weekly wages are ascertained by dividing employee earnings over the previous year by 52 weeks, rather than the number of weeks actually worked.
If you are a seasonal worker in Massachusetts and have suffered a job-related injury, our dedicated team of experienced attorneys in Boston can help.
Contact the Law Offices of Jeffrey S. Glassman today for a free and confidential consultation.