Meet Jane. She's answering your job ad for a dental assistant
position. On paper, she seems perfect. She has the education, the
skills and the right amount of experience you're looking for. She
should be a great fit for the position, but you're leery about hiring
her just based off her resume and an initial interview.
To get a better understanding of her skills, you decide to utilize
a tool you picked up from a colleague years ago called a "working
interview." You ask Jane to come in for a few hours and have her
work alongside you as an assistant. She'll work through the morning
so you can test her skills and chairside manner with patients.
During these couple of hours, she agrees to not be paid because it's
a working interview and she wants to show you what she can do.
At the end of the interview, you feel like you have a good handle
on her skills and personality, but you're not sure she's the best
fit for your office. You tell her you'll be in touch with your final
decision in a few days. She leaves without pay, or perhaps you
write her a check for $100 for her time. You go back to work no
worse for wear.
But what if I told you that you just did something illegal?
Something that is considered tax fraud?
What are Working Interviews?
Working interviews were originally invented by temporary
employment agencies as a "try before you buy" option. The agencies
would send out potential job candidates to their clients'
offices to work for a few hours, days or even weeks to give the
client time to test out the candidate's skills. If clients liked a candidate,
they could hire him/her as an employee. If that candidate
did not impress, the agencies would send another until their client
was happy. From that, the idea of working interviews was born.
Today, most working interviews are done without the temp
agency as a middle man. Employers contact job candidates
directly and invite them to work in the office for a few hours or
days to test their skills before hiring them directly. Many employers
get a verbal or written acknowledgement that the candidate
waives his or her right to be paid while interviewing, while other
employers simply compensate the candidate as a 1099 and pay
them a fixed amount for the day.
Working Interviews: Legal or Illegal?
Unfortunately, in the eyes of the IRS and Department of
Labor (DOL), if you do not pay an employee for time worked,
you are seen as attempting to avoid your obligations as an
employer. The employer obligations I'm referring to, of course,
include withholding taxes, paying matching taxes, wage notice
requirements, I-9s, and more.
Employees may not sign away their rights, even if they wish
to. Therefore any "understanding" or paperwork you put
together is void, and will most likely end up being used as evidence
against you in a complaint.
Similarly, misclassifying the candidate
as an independent contractor also
violates IRS and DOL rules. If the person
performs duties usually done in your
office by employees, and does so under
your control, using your equipment, in
your office, and at the hours you request,
that person is an employee. If you call the
person a contractor to avoid payroll taxes or other employment
benefits, you have misclassified the person.
It's very important to realize how unforgiving the IRS and
DOL are when it comes to misclassification enforcement. In fact,
they have incentivized enforcement so much that several states
have entered into an agreement with the federal government,
called the DOL Misclassification Initiative.1 The states that do
the best job of enforcement will receive significantly more tax
dollars as a reward. Therefore, your state is likely actively looking
for misclassification violations in your practice.
So what is the difference between a temp agency's working
interview (legal) and yours (illegal)? To put it simply, the candidate
is employed by the temp agency. The temp agency fulfills all
of the employer obligations because it hires the candidates and
temps them out to you. The IRS and DOL are satisfied because
the new hire paperwork is filled out and all applicable taxes are
withheld, matched and paid.
However, when you do a working interview yourself (sans a
temp agency), none of the employer obligations are fulfilled,
thereby violating a myriad of labor and tax laws. If caught, heavy
penalties from the IRS or DOL can be levied against you.
If that wasn't enough to give you pause, because the candidate
is not a true employee, you are also missing key protections for you
and your business. This includes worker's compensation coverage
for the candidate in the event he or she is injured in your office, and
proper background checks to ensure you're not giving a possible
felon access to your patients' confidential information. Moreover, if
you hold a working interview and then decide against hiring the
candidate, he or she will have the upper hand if the person chooses
to file unemployment or a complaint against you.
Therefore, as you might imagine, working interviews are
dangerous and not worth the risk.
Can You Call Them Volunteers, Interns or
Temporary Externs Instead?
Unfortunately, no, you cannot. Remember, employees may not
sign away their rights or agree to something that misclassifies them,
verbally or otherwise. There are very strict, established rules regarding
who can be classified as what. This includes conditions for
someone to be called a volunteer, an intern or a temporary extern.
By its very definition, a volunteer is someone who volunteers
his or her time to an organization (usually nonprofit) in a goodwill
endeavor. Volunteers are not trying to interview for a paying
job, and cannot waive their right to be paid for work that you
would normally pay an employee to do.
Similarly, to be properly classified as an intern or extern, the
candidate must be enrolled in a legitimate program with its own
rules regarding how intern/externships earn class credit. If the
candidate is not a current student, or his or her program does not
support intern/externships, then this classification cannot apply.
If the candidate is a student, a good rule for you to keep in mind
is that a student cannot replace a worker. Students are there to
learn and gain experience. If they do perform the same work as a
normal employee, it must be done only under the guidance and
supervision of the employee that normally performs the tasks.
After reading all this you may be asking what you can do if you
can't do working interviews.
Don't despair. The answer is skill testing.
The difference between working interviews and skill testing
is the environment they are done in. During a working interview,
you ask the candidate to work alongside you during a regular workday and have him or her perform and demonstrate
skills on patients. In contrast, skill testing is when you set up a
scenario and ask the candidate to walk you through it, as they
For example, take a dental assistant candidate into a room and
show him or her your set up. Then ask the person to reproduce the
set up in another operatory. For a hygienist candidate, create a
chart for a fake patient and have the candidate look in the mouth
of one of your employees and tell you how the chart differs from
what he or she is seeing. For someone who would bill insurance,
set up a fake patient file and test the person on coding or answering
the patient's (played by someone in the office) questions.
This skill testing method is legal, and will grant you an inside
look at the candidate's skills and personality.
Next, Make the Candidate a Provisional Employee
If you decide you like the candidate and want the person to
show you what he or she can do "on the job," the next step is to
make the person a provisional employee.
This means that, after a thorough interview process and background
check, you'll go through all the normal "new hire" steps
and put the candidate on your payroll. Afterward, you put the new
employee on notice that he or she is not eligible for benefits, must
prove themselves, and may be let go at any time during the initial
90 days and beyond. This is also known as at-will employment.
If you have this policy properly written in your employee
handbook, it can be used to the same effect as a valid trial period,
with no obligation to continue employment.
Many employers believe that if an employee is in the 90-day
introductory period or has a "temporary" classification, the
employee cannot collect unemployment benefits if you let the person
go. Unfortunately, that is not true. Unemployment benefit
eligibility is determined state-by-state and case-by-case. Factors
include how long the candidate worked for you and if he or she
had a job prior to coming to work for you.
How to Hire "Right" Every Time
Before you hire anyone else, there are three important things I
want to encourage you to do:
1. Learn how to interview better.
A great technique to utilize is the behavioral interview. By
rephrasing questions to elicit a situational answer (as opposed to a
yes/no or hypothetical), you can gain immense insight into a candidate's
inner thought process. To learn more about behavioral
interviewing, Dentaltown readers can download a complimentary
copy of our Hiring Guide at www.cedrsolutions.com/DTHG.
2. Hire slow and fire fast.
Take your time interviewing and picking who you think is the
right candidate for the job. Then, if the person doesn't work out,
don't waste time waiting for improvement – let the person go and
3. Make any offer of employment provisional on completing
a successful third-party background check.
If they cannot pass the professional background check, you are
free to offer the next person on your short list the job, providing
that person can pass the background check.
A good professional third-party company is Clarifacts. They
can be reached at 800-318-0553. Let them know you heard about
them from Paul Edwards at CEDR and you will receive special
pricing for dentists.
- Calling it a "working interview," "internship" or "volunteer
opportunity" does not mean you can legally avoid paying a
- You can't call the candidate an independent contractor (1099)
and pay them a lump sum for the couple hours worked.
- Your worker's compensation won't automatically cover injuries.
- Candidates who have completed working interviews can sue
- Hold skill testing for the position while you and your staff
play the part of the "patient."
- If you decide to hire the person, go through the full hiring
process, including background checks, U.S. employment
eligibility verification, new-hire paperwork and handbook
- Finally, let the employee know he or she is a provisional
employee, and can be let go at any time during the 90-day
introductory period and afterward.
Hiring doesn't have to be scary. By using skill testing and
the interview and hiring methods I mentioned, you will have all
the benefits of a working interview, but without the risks.