Posted by: Ron Loza | July 31, 2013

Working Interviews

Working interdental-assistantviews are pervasive in the dental community. I don’t know why they are pervasive in this industry but perhaps it was a topic at a seminar on building a dental practice and it spread like wildfire. The idea seems great on the surface; have a prospective employee work for a few hours or a couple of days so you can have a good idea if they will be successful and avoid all of the rigorous forms and requirements of hiring an employee.  However, using a working interview to exempt yourself from your obligations as an employer does not work and can actually get you in a lot of trouble

The Origin of Working Interviews

A working interview is a marketing invention created by temporary employment agencies as a “try before you buy” option. Try out  employees until you find one you like, then hire him or her permanently. A trial run is easier and less hassle than interviewing and hiring several candidates yourself.

In this situation, the candidates are actually employed by the temp agency. More accurately, the temp agency fulfills all of the new hire paperwork and employer obligations for you. Many employers forget this important fact. Then they cut out the temp agency in order to eliminate the middle man, and end up vulnerable to a host of problems.

Potential Problems

There are many potential issues that can arise such as not having coverage if the worker is injured while in your office, not having the protections of your handbook, classification penalties from the DOL or IRS, potential FLSA (minimum wage and overtime) violations, and more.  Moreover, if you do not hire the worker and they become disgruntled, they now have leverage over you to file a complaint because you have not complied with the law.

The Fallacies

You may have heard these statements; You don’t have to pay workers if you call it a “working interview,” and it’s only for a couple of hours. No paperwork means they were “never there” and you fly under the radar, especially if you pay them less than $600. Your workers’ compensation will automatically cover their injuries. You can just call them an independent contractor or “casual labor” and 1099 them.

These statement are all false, especially the later. You can’t make someone an independent contractor just by signing a contract.  If they perform duties usually done in your office by employees, and do so under your control, using your equipment, in your office, and at the hours you request, they are an employee.  If you call them a contractor to avoid payroll taxes or other employment benefits, you have misclassified them, and you are subject to penalties from both the IRS and Department of Labor.

What To Do

Unfortunately there is no shortcut. You must “hire” the prospective employee however there are some things you can do a little differently.

Instead of making it an unpaid interview or trying to call them an independent contractor when they do not fit those requirements, go ahead and make them a “Provisional Employee”.  After a thorough interview process and background check, go ahead and put them on your payroll.  Using a one page letter, put your new employee on notice that they are not eligible for benefits, must prove themselves, and may be let go during a certain period of time after hire, make it “X” days or hours.  If you have this policy in your handbook, you can use it to get the same benefits you would get from a working interview (i.e., a valid trial period, with no obligation to continue employment).

Always:

  • Pay them no less than minimum wage.
  • Withhold payroll taxes.
  • Verify their eligibility to work in the US. (Form I-9)
  • Cover the employee for Workers’ Compensation, and notify your carrier to ensure coverage.
  • Provide a copy of your Employee Handbook.  The protections in it apply only to those who receive a copy.

Follow these procedures and you should have no problems.

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