|
Employee Working Interviews: Are They Legal?
by Paul Edwards
Your office finally has a GOOD problem: It’s growing, and you need to hire more people. Of course you want to hire the best person possible, and you find yourself worrying about how to find that candidate. You want more than just an impressive resume; you want to see them in action before you go through all the work of officially hiring them.
Then you recall that your friend Bob had the same problem at his practice, and he solved it by trying out a few candidates from a temp agency before hiring his dream employee. You realize Bob’s idea is great, and decide to make one small improvement. Why not just cut out the middleman and directly ask your best applicants to come in for a working interview?
You have your top candidate Shirley come in. You agree to pay her $100, and watch her in action throughout the day. Soon, you realize the skills listed on Shirley's resume aren’t apparent when she’s actually dealing with patients or doing paperwork. You thank her for coming in and decide to move on to candidate #2. You congratulate yourself on a job well done: $100 was a small price to pay to find out Shirley is not a good fit for your office—certainly less than you would have paid a temp agency! And who knows, maybe your next candidate will work out better.
But I’m afraid I have bad news: The scenario we just described with Shirley is considered tax fraud, by both the IRS and Department of Labor (DOL). Worse, you now have a huge liability issue. If Shirley was hurt on the job, files a complaint after not being hired, handled a patient incorrectly, or caused a HIPAA violation, your practice is completely unprotected. In court, you would be at a huge disadvantage from the start, and would probably need to consider an expensive settlement.
It gets even worse, unfortunately. Your employee handbook, your most vital tool for setting expectations, resolving employee complaints, and preventing lawsuits (you DO have an up-to-date handbook in place, right?), won’t apply to a candidate who never received it.
The Dangers of the Working Interview
As the employer, you have legal and tax obligations that pertain to all of your employees. The IRS and DOL would see the working interview you had Shirley go through as an attempt to avoid those obligations. Instead, to be legal and protected, you should do ALL of the following as soon as someone starts working for you:
· Pay them no less than minimum wage
· Withhold payroll taxes
· Get a background check and verify their eligibility to work in the US
· Cover the employee for Workers’ Compensation, and notify your carrier to ensure coverage
· Ensure the employee has completed HIPAA training
· Provide a copy of your employee handbook. The protections in it apply only to those who receive a copy.
As you can see, calling even just a few hours of work for your practice a “working interview” doesn’t get you out of ANY of your obligations as an employer.
Working Interviews (and IC Status) Are Not Workarounds for Employer Obligations
Although it might be surprising after learning that your working interview idea wasn’t so great after all, your friend Bob’s process was actually acceptable. That’s because of a critical difference: In Bob’s case, the temp agency itself employed Jane. In your working interview, your practice employed Shirley for that day. A working interview will not bypass the hassles of officially hiring a potential employee; it will create the very problems and liabilities you are trying to avoid!
Simply put: If Shirley was under your control and worked in your office using your equipment, as far as the IRS and DOL are concerned you are her employer and she is your employee. Signing a waiver will not change this fact, as she cannot waive away her rights as an employee.
And calling her an independent contractor won’t help, either. Because the IRS and DOL would consider her your employee, they would decide your practice misclassified her to avoid your obligations.
A Legal Alternative to Working Interviews: Skill Testing
After reading the above, you may be asking, “Okay, I can’t do working interviews, and I can’t call candidates independent contractors, so what CAN I do?” The answer is skill testing. The difference between working interviews and skill testing is simply whether the work environment is real or simulated. In a skill test, you set up a work-like scenario and ask the candidate to walk you through it.
For example, you might take a dental assistant candidate into a room, show them your setup, and ask them to reproduce it in another operatory. For a hygienist candidate, you might create a chart for a fake patient and discuss it, or have them demonstrate a technique on a plastic model. For someone whose job would include billing insurance, set up a fake patient file and test them on coding, or answering a “patient’s” questions.
This skill testing method is not only legal, but will grant you that same inside look at the candidate’s skills and personality.
Hire Slow, Fire Fast: The Best of Both Worlds
How can you ensure your practice hires the best people, time and again? Here are a few guidelines to follow:
· Always use a skills test. As described above, ask the applicant to describe how they would do something, step by step. Better yet, have them show you—just not on a patient.
· Use behavioral interviews. When interviewing, don’t ask simple yes/no questions, or ones the employee can rehearse their answers for. Instead, ask for an example of a relevant work or life situation they struggled with and how they handled it, and you’ll get a truer response.
· Always do a background check. Make it clear that any offer of employment is contingent on passing.
After completing the steps above for your prospective new hire, you can still try them out by having a “getting acquainted period” carefully outlined in your employee handbook. If you don’t have one of these, or if you don’t have an up-to-date employee handbook in place in your practice, contact us at CEDR – we can help!
By using these steps and a getting-acquainted period each time you hire, you will usually know if an employee is going to work out fairly soon. If things aren’t going well, you’ll want to let them go sooner, not later.
Paul Edwards is the CEO and Co-Founder of CEDR HR Solutions (www.cedrsolutions.com), which provides individually customized employee handbooks and HR solutions to dental offices of all sizes across the United States. He has over 20 years’ experience as a manager and owner, and specializes in helping dental offices solve employee issues. Paul is a featured writer for The Profitable Dentist and Dentaltown Magazine, and speaks at employment education seminars, conferences, and CE courses across the country. He can be reached at paul@cedrsolutions.com.
|