Bent Ericksen & Tim Twigg
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 that during the day, she fell off a chair and hurt her back.
An applicant came in for a working interview and was subsequently not hired. She filed for unemployment. The doctor was ruled to be her last employer and liable for the unemployment claim.
It is quite common to want applicants to demonstrate their job-related skills by asking them to participate in a "working interview." As you can see from the two cases described above, this natural extension of the verbal interview can become a costly problem for the employer if it is not handled correctly.
Since the applicants in both cases were not hired, how could they have been considered practice employees?
Let's first look at the Federal Labor Standards Act's (FLSA) definition of an "employee."
FLSA defines the term "employee" as any individual who is "permitted to work" by an employer. Therefore, when applicants are permitted to work as part of a "working interview," they are considered employees in the eyes of the government. This is especially true when the applicants are paid for their time.
Federal regulations do allow for employers to provide training for trainees or other individuals — such as volunteers — who have not been hired. According to the FLSA, volunteers are individuals who volunteer their time or who work for their own advantage without an express or implied pay agreement.
Who can be considered trainees or other individuals? FLSA states that an individual is not considered an employee when:
1 The time spent is primarily for the benefit of the trainee or other individual (such as an applicant), rather than the employer. (The potential benefit to the applicant would be a possible job offer.)
2 The applicant is not entitled to a job at the end of the training, and the employer and the applicant have a prior agreement that no wages will be paid.
Several states have spelled out similar interpretations with wording such as, "Where there is no contemplation of payment, there is no employment relationship."
How, then, is it possible to test an applicant's technical skills without the applicant taking on an "employee" status and the inherent risks associated with it?
To be safe, it is always important not to have applicants replace regular workers. Do not test an applicant on a day when another employee has requested a day off and you know you are going to be short-handed. It could appear that you are using the applicant as a temporary worker. Also, do not have the applicant stay a full day. We suggest no more than four-to-six hours.
Further, prior to testing, provide applicants with a letter stating that they are volunteering for the skills assessment as part of the job interview. (Do not call it a working interview.) The letter should include the following information (see our Personnel Form 419, Skills Assessment Interview Agreement):
1 Applicants will not be paid for the time.
2 At the end of the session, the applicants will be considered for the job, but you cannot make any promises.
3 Have applicants sign a copy of the letter for your file.
Remember: The applicant can not be paid for the time, nor must he or she be led to expect any kind of reward. At the end of the session, you may want to surprise the applicant with a gift certificate to a department store or a restaurant as a show of appreciation — after-the-fact — for his or her time.
One final note: While following these recommendations will protect you from employment-related claims, if a person is hurt on your premises, you still may have to deal with a personal liability claim through your general liability insurance.
Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For over 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. Both authors are members of the Academy of Dental Management Consultants. To receive a complimentary copy of the company's quarterly newsletter or to learn more, contact them at (800) 679-2760 or at www.bentericksen.com.