A dentist brought a hygiene applicant in for a working interview. It lasted six hours and the dentist paid her for her time, after which he decided not to hire her. She filed for and was granted unemployment insurance benefits.
Most dentists consider it important for applicants to demonstrate their job-related skills by having them participate in a “working interview.”
The typical working interview lasts anywhere from four to eight hours, and the applicant is usually paid for his or her time. In some cases, taxes are withheld consistent with payroll rules, and in others, no taxes are withheld under the auspices of an independent contractor status.
In the above case, given the length of time of the working interview and the compensation provided, the applicant - even though not officially hired - was considered an employee. Government agencies consider a person an “employee” when the individual is “permitted to work” by an employer. Therefore, in the eyes of the government, when applicants are permitted to work and are paid as part of a “working interview,” they are invariably considered employees.
How can you test an applicant’s technical skills without the applicant taking on an “employee” status and the inherent risks associated with it? The following solutions will help you avoid problems. You will have to decide, though, whether the steps outlined inhibit your ability to adequately test an applicant’s skills. If so, then accept the fact that, in most cases, the applicant will be considered an employee with all appropriate rights afforded.
Change your language and do not call this aspect of the hiring process a “working interview.” Instead, begin incorporating the phrase, “skills assessment.” We suggest positioning the skills assessment simply as part of the interviewing process. For example, you can use language such as, “A job interview for a position with this practice may consist of two parts. The first is a verbal interview and the second may involve you demonstrating your professional skills. If you are selected to participate in the skills assessment aspect of the screening process, your participation, like the verbal interview, is voluntary. As a volunteer, there is no compensation provided for the time needed to demonstrate your skills and no employment relationship exists.”
The parameters of a skills assessment should adhere to and recognize the following criteria:
1) The time spent is primarily for the benefit of the person volunteering his or her time (such as the applicant), rather than the employer. The potential benefit to the applicant is obviously a possible job offer.
2) “No productivity is derived” or no production is performed. In the case of hygiene applicants, treating a patient could be construed as “productive work,” as could treating an employee if it fulfills the dentist’s dental benefit obligation to employees.
3) The applicant is not promised a job before participating in the skills assessment, nor is he or she promised a job after completing the assessment.
4)The applicant is not replacing a regular worker on the day of testing. Therefore, it would not appear that the applicant is being used as a temporary worker. Also, do not test an applicant on an employee’s day off.
5) No form of compensation should be provided. Several states have spelled out similar interpretations with wording such as, “Where there is no contemplation of payment, there is no employment relationship.” Based on recent interpretations, even a gift certificate after the fact is now considered by some Labor Bureaus to imply a form of compensation. For that reason, they are best avoided.
6) The skills assessment is limited to a few hours. Although most governmental agencies and Bureaus of Labor do not specifically define the time limit, we suggest no more than one to two hours.
Prior to testing, each applicant should sign an agreement, such as our “Skills Assessment Interview Agreement” (Form #108). The agreement should indicate the applicant 1) is volunteering for the skills assessment as part of the job interview, 2) will not be paid for the time, and 3) is not promised a job at the end of the interview. The signed form should be retained, along with the application and any other hiring forms you may use.
Again, if you determine that the parameters described above inhibit your ability to adequately test an applicant’s skills, then you should compensate the applicant as an employee for his or her time as part of your normal payroll with appropriate deductions withheld.
Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For more than 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with ever-changing and complex labor laws. Both are members of the Academy of Dental Management Consultants. To receive the company’s complimentary quarterly newsletter or to learn more, contact them at (800) 679-2760 or at www.bentericksen.com.