By: Chelsea England Leonard, Associate, Orlando
As the holiday season heats up, a parallel surge of hiring seasonal staff may have already reached its boiling point. ‘Tis the season of the seasonal employee. The emergence of the seasonal employee brings with it the age-old question: what happens to Kenny, the liberal arts college student who comes home for Christmas after a rigorous semester studying the humanities, when he gets hurt while working a seasonal job during his break?
First, let’s define who is a seasonal employee. You might be surprised that it is actually a broader definition than just the college student working on their Christmas break. The First DCA addressed what could be considered a seasonal employee in Fiberglass Mfrs. & Employees Cas. Co. v. Davis, 460 So. 2d 998-1000 (Fla. 1st DCA 1984). Here, the court that a truck driver may be regarded as seasonal because the summer months were normally slower than the winter. Id. Accordingly, a seasonal employee can be anyone who works year round, but whose wages are affected by a slow down in employment during certain months or seasons.
Now that we have defined season employee, let’s look to how classifying an employee as a seasonal employee impacts their workers’ compensation claim. First off, as you likely know, being classified as a seasonal employee has no impact on compensability, or course and scope analysis. However, being classified as a seasonable employee may impact how to calculate an employee’s average weekly wage.
Typically, when calculating an average weekly wage, generally you use the 13 weeks prior to the date of accident to determine the Claimant’s AWW. However, according to Florida Statutes, §440.14(1)( c), “If an employee is a seasonal worker and the [13 week] method cannot be fairly applied in determining the average weekly wage, then the employee may use, instead of 13 weeks immediately preceding the accident, the calendar year or the 52 weeks immediately preceding the accident.” The statute states it is the employee’s burden to prove this method would be more reasonable and a “fairer” method than using the 13 week method or the similar employee method. The Claimant can satisfy his burden of proof by providing documents such as: W2 forms, wage statements, and/or tax returns. If the Claimant can provide sufficient evidence, then Carrier has 30 days following the receipt of such proof to adjust the AWW. See Fla. Stat. §440.14(1)( c).
As such, the seasonal employee method of calculating the AWW could be applied to occupations such as teachers, truck drivers, harvesters, temporary employees, retail salespersons, or any other positions impacted by slow downs in employment during certain periods of the year.
However, if the Claimant’s income varies for reasons other than seasonal factors, the seasonal employee method may not be found to be the more reasonable method. This was the case in Anstead v. Cox Broadcasting, 500 So. 2d 197 (Fla. 1st DCA 1986), where the First DCA found there was not sufficient evidence to support the use of the seasonal employee method. In this case, the employee: always worked full time as a salesman; and did not have income effected by the busier time of the year. Additionally the court found the Claimant earned a commission, which was effected by how good a salesman he was, and the geographic location.
As a practiced point, it may be prudent to obtain 52 weeks of payroll records if you suspect the Claimant may be doing seasonal work, this way you can determine if this would be the best method to calculate the AWW and avoid the pesky upward adjustment of the AWW in the future.
In the nature of the holiday spirit, and to sweeten up this analysis, I have included below a favorite Christmas desert of mine.
Chocolate Nutella Pudding
What you will need:
|4 ounces bittersweet or semisweet chocolate
¼ cup cornstarch
¼ cup sugar
¼ cup unsweetened cocoa powder
1 teaspoon kosher salt
3 cups whole milk
1 teaspoon vanilla extract
1 cup Nutella
½ cup whole raw hazelnuts
2 tablespoons unsalted butter
Flaky sea salt
- Chop 4 oz. chocolate; set aside. Whisk ¼ cup cornstarch, ¼ cup sugar, ¼ cup cocoa powder, and 1 tsp. kosher salt in a medium saucepan. Very slowly stream in 3 cups milk, whisking constantly, until lump-free.
- Cook over medium heat, whisking constantly and vigorously, until pudding is bubbling and thick enough that wires of whisk leave a trail, 7–10 minutes.
- Remove from heat. Whisk in one-quarter of the chopped chocolate until smooth. Add remaining chocolate in three additions, whisking after each addition, until chocolate is melted and mixture is smooth. Whisk in 1 tsp. vanilla.
- Place 1 cup Nutella in a medium bowl and add about ½ cup warm pudding mixture. Whisk until smooth, then whisk in remaining pudding mixture until incorporated. Cover pudding with plastic, pressing directly onto surface to prevent a skin from forming. You can let it cool slightly at this point and serve warm, or chill pudding until completely set, at least 2 hours.
- Meanwhile, crush ½ cup hazelnuts with the bottom of a small saucepan to break into irregular bits. Cook hazelnuts and 2 Tbsp. butter in saucepan over medium heat, stirring often, until butter is browned and hazelnuts are golden, 8–10 minutes. Let cool.
- If serving pudding warm, divide among bowls or ramekins. (Or, you know, feel free to eat it right out of the pot.) If pudding is chilled, transfer to a large bowl and whisk until smooth before serving. Top with hazelnuts and a sprinkle of sea salt.
- Do Ahead: Pudding can be made 3 days ahead. Cover, pressing plastic directly onto surface, and keep chilled.