[Cross-reference: Seasonal AWW Dispute (W01).]
A seasonal worker is an employee who, as a regular course of conduct, participates in seasonal or cyclical work, which does not continue throughout an entire year. Section 408.043(d); Section 128.5(a).
In determining whether an IW is a seasonal worker, the IW's past work history, rather than the nature of the IW's employment on the DOI, is considered. APD 001922. The fact that an IW agrees to work for a fixed period called a "season" does not make the IW a seasonal employee. APD 992884. Whether an IW is a seasonal employee is a question of fact for the HO to resolve. APD 031080.
The seasonal IW's AWW used for calculating TIBs should be adjusted as often as necessary to reflect the wages the IW could reasonably have expected to earn during the period that TIBs are paid. Section 408.043(a). The IC that seeks adjustment of the IW's AWW has the burden of proving that the IW was a seasonal employee. APD 002390. Evidence of a seasonal IW's earnings must be submitted at the time an adjustment is requested and must include proof of the IW's earnings in corresponding time periods in previous years. Section 128.5(c); APD 93015.
Fair, Just, and Reasonable Determination.
If the Division determines that is impractical to calculate the AWW in one of the methods described, the Division may compute the AWW in a way that is fair and just to both parties. Section 408.043(c); Section 128.5(d)(2). Before making a fair, just, and reasonable determination, the Division must state why it is impractical to use one of the other methods for determining AWW. APD 970605. The sole fact that the IW is a seasonal employee, and does not work for the employer on a yearly basis, does not make it impractical to use one of the other methods for determining AWW. APD 971082.