Consider the following scenarios:
- A dentist was interested in hiring 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 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 in the industry to have applicants demonstrate their job-related skills by asking them to participate in a working interview, you can see from the two cases above that this so-called extension of the verbal interview can become a costly problem.
Perhaps you’re thinking you can avoid such problems by not paying someone during a working interview. Watch out! This is illegal. Individuals engaged in working interviews, no matter how short the duration, are working for you and must be paid for their time.
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To understand the pay component, we must look at the government’s definition of an employee. Simply put, employment is defined very broadly; an individual is considered an employee if the individual “suffers or is permitted to work” by an employer. Clearly, by that definition, conducting unpaid working interviews is simply not allowed. After all, what’s a working interview if not someone who is “permitted to work” by the employer?
Perhaps you’re thinking you can avoid such problems by paying someone as a 1099 employee. Watch out! This is also illegal.
First, there is no such thing as a “1099 employee.” That’s an oxymoron. A 1099 individual is, by definition, an independent contractor, which is not an employee.
Second, the legal criteria for independent contractor relationships are extensive, and are outlined in federal and state laws. Suffice it to say, the main criterion is the exercise of control, meaning “does the company control or have the right to control what the worker does and how the worker does his or her job?” In the case of a working interview, the answer is yes. The employer controls how, when, where, and who the work is being done on. There is no legal way for a working interview to qualify under independent contractor rules.
Bottom line, since the individuals involved in working interviews are considered your employees, then all laws pertaining to employer-employee relationships apply. This includes wage and hour laws, workers’ compensation insurance, discrimination and retaliation liability, and unemployment insurance. Unfortunately, there is no avoiding these problems when conducting working interviews.
Is there an alternative to working interviews that circumvents the problems described? Yes, it’s called a skills assessment. If done right, skills assessments can be unpaid events, and the individual will not be considered an employee. To conduct a skills assessment legally, employers must adhere to the following guidelines:
- Avoid productive work. Applicants cannot do anything that an otherwise regular employee would do. That means no insurance billing, teeth cleaning, assisting the doctor with patient care, answering phones, etc. Performance of any skills must be within a false environment. For example, cleaning teeth on a ceramic model, billing insurance to the Marvel Insurance Company for patient Captain America, play-acting answering phones or dental assisting. These are demonstrations of skills, not actual work duties.
- Keep the assessment to roughly one hour or less.
- Establish the skills assessment agreement in writing. This agreement outlines that it is an extension of the interview process and is voluntary; there is no promise of employment; no employment relationship exists; and no compensation will be provided.
- If a person is hurt on your premises, then you may still have to deal with a personal liability claim through your general liability insurance.
As you can see, working interviews and skills assessments both have their pros and cons, so, which is best for you? When done correctly, either will work, but we find working interviews are the preferred choice. And that’s OK as long as they’re done correctly (i.e., paid), and the employer is prepared for any potential consequences that may occur when conducting them.
Editor's note: This article appeared in the March 2023 print edition of Dental Economics magazine. Dentists in North America are eligible for a complimentary print subscription. Sign up here.
