Variable Hour Employees

Based on the facts and circumstances at the employee’s start date, the employer cannot determine whether the employee is reasonably expected to be employed on average at least 30 hours per week because the employee’s hours are variable or otherwise uncertain. Factors to consider in this determination include, for example:

• Whether the employee is replacing an employee who was a full-time employee or a variable hour employee;
• The extent to which hours of service of for employees in the same or comparable positions have actually varied above and below an average of 30 hours of service per week during recent measurement periods; and
• Whether the job was advertised, or otherwise communicated to the new hire or documented (for example, through a contract or job description), as requiring hours of service that would average 30 (or more) hours of service per week, less than 30 hours of service per week or may vary above and below an average of 30 hours per service per week.

For purposes of determining whether an employee is a variable hour employee, the employer cannot take into account the likelihood that the employee may terminate employment with the employer before the end of the initial measurement period.