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Why are Dental Practices Still Holding Illegal Working Interviews?
CEDR
We thought the beast had been slain, but it continues to rear its ugly head again and again.
Though we’ve covered the issue of working interviews in numerous ways and in many different formats in the past (including a previous installment of HR Tuesday), there seems to still be a lot of misunderstanding among members of the dental community about how working interviews work, as well as how to do them legally.
So, in case you haven’t heard the news (or you just need to hear it again), if your office is still conducting working interviews without completing all of the necessary new-hire paperwork beforehand, that interview is actually putting your practice in legal jeopardy.
What Makes Working Interviews Illegal?
According to the Department of Labor, if an individual does any work for your practice that would typically be delegated to an employee of your practice, that individual must be legally treated as an employee. So, if anyone does any amount of work that contributes in any way to your practice’s bottom line, that person is, by definition, an employee of your practice.
Therefore, if you bring a candidate in to work at your practice for a day or part of a day before going through the processes of hiring them, you are operating outside of federal labor laws. Even if you pay them an amount you both agree on, offer them a gift card, or get them to sign a document saying that they understand that they are not an employee of your practice, that does not negate your practice’s legal liability as the candidates employer, even if the term of that employment is extremely temporary.
When you bring someone in to perform work for your practice, even if it’s just to perform a working interview, you must legally pay them at least minimum wage for their time, withhold all necessary taxes, and have them fill out an I-9.
Because you will also be exposing your patients to this untested individual, you’ll also want to conduct a background check before bringing them on board and refresh their HIPAA training to ensure they are still up-to-date on the processes and protocols for working with PHI, for starters.
So, Why Are Working Interviews Still So Common in Dentistry?
What we hear most often in the HR Solution Center here at CEDR is simply that the vast majority of dentists and office managers don’t realize that they are working outside the law when conducting working interviews.
Generally, because so many offices seem to use the practice (if they are not conducting working interviews themselves, most dental professionals know at least one other practice who is), most simply presume that the process must have been vetted at some point and so see no harm in employing it themselves.
The unfortunate reality is that it has not.
The working interview began as a marketing tactic by temp agencies. Since the agency was the legal employer of the workers they supplied for working interviews, the dental practice was spared the trouble of completing new-hire paper for each candidate they wanted to test. This allowed them to use a “try-before-you-buy” method of testing out various employees before finding the right fit for their practice. At some point, however, working interviews migrated out of temp agencies and into private practices, birthing the illegal methodology that is so common today.
Legal Alternatives to Working Interviews
Rather than having candidates work on or with patients as part of their interview process, some managers opt to have those candidates “shadow” another employee for a day or partial day. While this might give you a chance to see how they gel with certain members of your team, it will not allow you to evaluate the applicant’s technical ability or skill sets.
Further, because you will still be exposing your patients to an unproven candidate by having that candidate shadow an actual employee, you will still want to update their HIPAA training before allowing them to shadow someone, at a minimum. Otherwise, you risk having that candidate cause a HIPAA breach during their trial.
When our members suggest that they want to test out an applicant before bringing them on board long term, we typically recommend that they employ one or more “skills tests” rather than putting their applicants to work illegally.
Skills tests are just what they sound like -- they are scenarios employers contrive in order to put an applicant’s technical knowledge and ability to the test without putting the candidate to work for their practice or otherwise exposing those candidates to actual patients. This can include conducting mock procedures, working with false or anonymized charts, and more (for 9 skills tests you can use to test out candidates for your practice, download our free Working Interview Guide).
Skills tests are a great way to test out applicants in a risk-free setting that allows you to get an idea of how capable they are at performing the essential functions of the job for which they are applying.
Conclusion
It is possible to conduct a working interview legally, but only if you go through a temp agency or make sure you are completing all of the necessary steps to actually hire the candidate in a temporary capacity (conducting a background check, collecting new hire paperwork, paying at least minimum wage, withholding taxes, etc.).
But, to minimize risk to your patients and your practice, and to make it easier on both you and your candidates, it’s preferable that you perform skills tests with your new applicants which don’t require them to actually perform any real work or interact with your patients.
For more on what it takes to protect yourself and your practice so that you can conduct a working interview, the risks involved in conducting a working interview illegally or allowing untested candidates to interact with your patients, as well as sample skills tests you can utilize with both clinical and non-clinical applicants, download our free working interviews guide, Making Working Interview Work.
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