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Trojan Today Classic: “Common Practices Fraught with Risk, Part 1” by Rebecca Boartfield

Common Practices Fraught with Risk, Part 1 By Rebecca Boartfield | Trojan Today Classics

Originally published March 2018 in Trojan Today.

“Working interviews,” volunteering, and/or unpaid internships are not uncommon in the industry, but they have become a source of increasing risk to dentists, both financially and emotionally. Not considering compliance requirements can leave you vulnerable to a plethora of problems.

Working interviews present complex issues that have serious ramifications for dentists who fail to be aware of, or properly comply with, the requirements. 

Here are two actual examples:

  • A dentist was interested in hiring an applicant as a dental assistant and had her come in for a “working interview.” She filed successfully for workers’ compensation as an employee, alleging she fell off a chair and hurt her back during the day.
  • An applicant came in for a “working interview” and was not hired. She filed for unemployment. The doctor was ruled to be her last employer and liable for the unemployment claim.

While it is quite common to ask applicants to demonstrate their job-related skills by having them participate in a “working interview,” these two cases demonstrate this extension of the verbal interview can become a costly problem for the employer if not handled correctly.

When and how can applicants engage in “working interviews” for a potential employer? What’s the best way to use them and still protect yourself? The following will shed light and provide best practice guidelines.

Definition of Employee 

To start, we need to look at the government’s definition of an “employee.” Simply put, employment is defined very broadly and considers an individual an employee if s/he “is permitted to work” by an employer.

“Working Interviews”

In some practices, the “working interview” is paid time for one or a few days. This is not a problem in terms of wage and hour rules provided the person is receiving compensation for his/her time, the rate in effect during that time is at least minimum wage, and the individual is paid for applicable overtime hours.

In many other practices, the “working interview” is conducted for one or a few days and is not paid. Clearly, based on the very broad definition stated above, this is simply not allowable. If you ask an applicant to perform work at your practice, whether “officially hired” or not, and no matter how short the time period, it is work time and must be paid. 

Since the individuals in the examples above are considered your employees, for good or bad, then your workers’ compensation insurance comes into play if the person is hurt on the job, and you will likely be considered the person’s most recent employer if the person does not remain employed and seeks unemployment compensation. Unfortunately, there is no avoiding this problem when conducting “working interviews.”

Is there a way to test an applicant’s skill before hiring that keeps him/her from becoming an employee and risking all the above? Yes, it’s called a “skills assessment.” 

To conduct a skills assessment legally, the following guidelines must be applied:

  1. Do not have applicants replace regular workers or fill in for workers who are off. This could appear as though the person is an employee, or temporary employee, because s/he is being treated as one by replacing another.
  2. Do not have the applicant perform a skills assessment for more than 1-2 hours.
  3. Refrain from providing any form of compensation, even something as little as a gift certificate, for participating in the skills assessment. Recent interpretations state an employment relationship does not exist if there was no contemplation of payment.
  4. Be sure no productive work is performed, or “no productivity is derived,” by the applicant’s participation, such as would occur when an applicant provides services to clients which are billed, such as a hygienist cleaning a patient’s teeth. A dental assistant or a hygienist who works on patients, potential colleagues, or anyone else who may benefit from the work or fulfill an employer’s obligations, is considered performing productive work. Instead, assess the applicant’s skills on a ceramic model, yourself, or an employee who does not receive dental treatment as part of a dental benefits program. In terms of other employees: billing insurance companies, receiving payment from patients, scheduling patients, calling cancellations, etc. is also considered productive work and should be avoided.

Require each applicant to sign an agreement prior to the skills assessment. This agreement outlines:

  1. the skills assessment is an extension of the interview process and is voluntary,
  2. there is no promise of employment,
  3. no employment relationship exists, and
  4. no compensation will be provided.

One final note

While following these recommendations will protect you from employment-related claims, you may still have to deal with a personal liability claim through your general liability insurance if a person is hurt on your premises.

(Next month’s Trojan Today will feature Part Two, on Volunteering and Unpaid Internships).

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