September 20, 2016

Doctor And Nurse Having Informal Meeting In Hospital Canteen

Your office finally has a GOOD problem: It’s growing, and you need to hire more people. Of course you want to hire the best person possible, and you find yourself worrying about how to find that candidate. You want more than just an impressive resume; you want to see them in action before you go through all the work of officially hiring them.

Then you recall that your friend Bob had the same problem at his practice, and he solved it by trying out a few candidates from a temp agency before hiring his dream employee. You realize Bob’s idea is great, and decide to make one small improvement. Why not just cut out the middleman and directly ask your best applicants to come in for a working interview?

You have your top candidate Shirley come in. You agree to pay her $100, and watch her in action throughout the day. Soon, you realize the skills listed on Shirley’s resume aren’t apparent when she’s actually dealing with patients or doing paperwork. You thank her for coming in and decide to move on to candidate #2. You congratulate yourself on a job well done: $100 was a small price to pay to get the extra information you needed to know Shirley is not a good fit for your office, certainly less than you’d have paid a temp agency. And who knows, maybe your next candidate will work out better.

But I’m afraid I have bad news: The scenario above with Shirley is considered tax fraud, by both the IRS and Department of Labor (DOL). Worse, you now have a huge liability issue. If Shirley was hurt on the job, files a complaint after not being hired, handled a patient incorrectly, or caused a HIPAA violation, your practice is completely unprotected. In court, you would be at a huge disadvantage from the start, and would probably need to consider an expensive settlement.

It gets even worse, unfortunately. Your employee handbook, your most vital tool to set expectations, resolve employee complaints and prevent lawsuits, won’t apply to a candidate who never received it.

Click here to watch our free webinar on hiring difference makers for your practice.

The Dangers of the Working Interview

As the employer, you have legal and tax obligations that pertain to all of your employees. The IRS and DOL would see the working interview you had Shirley go through as an attempt to avoid those obligations. Instead, to be legal and protected, once someone starts working for you, you should do ALL of the following:

  • Pay them no less than minimum wage.
  • Withhold payroll taxes.
  • Get a background check and verify their eligibility to work in the US.
  • Cover the employee for Workers’ Compensation, and notify your carrier to ensure coverage.
  • Ensure the employee has completed HIPAA training.
  • Provide a copy of your Employee Handbook. The protections in it apply only to those who receive a copy.

So why was Bob’s process acceptable? Because of a key difference: In Bob’s case, the temp agency itself employed Jane. In your working interview, your practice employed Shirley for that day. A working interview will not bypass the hassles of officially hiring a potential employee; it will create the very problems you are trying to avoid!

Working Interviews (and IC Status) Are Not Workarounds for Employer Obligations

Simply put: If Shirley was under your control and worked in your office using your equipment, as far as the IRS and DOL are concerned you are her employer and she is your employee. Signing a waiver will not change this fact, as she cannot waive away her rights as an employee.

And calling her an independent contractor won’t help, either. Because the IRS and DOL would consider her your employee, they would decide your practice misclassified her to avoid your obligations.

Click to download our free guide, "Making Working Interviews Work."

Hire Slow, Fire Fast: The Best of Both Worlds

Now that you know a working interview is dangerous and in most scenarios, illegal, how can you ensure your practice hires the best people? Here are a few guidelines to follow:

  • Use a skills test. Ask the applicant how they would do something, step by step. Better yet, have them show you—just not on a patient.
  • Use behavioral interviews. Don’t ask simple yes/no questions, or ones the employee can rehearse their answers for. Ask for an example of a relevant work or life situation they struggled with and how they handled it, and you’ll get a truer response.
  • Always do a background check. Make it clear that any offer of employment is contingent on passing.

After completing the steps above for your prospective new hire, you can still try them out by having a “getting acquainted period” carefully outlined in your employee handbook. In most cases, you will know if an employee is going to work out fairly soon. If things aren’t going well, you’ll want to let them go sooner, not later.

Questions about working interviews, or want to make sure your policies are setting you up for success? CEDR Solutions provides customized support for YOUR practice’s needs. Call us at (866) 414-6056 or email info@cedrsolutions.com, and we can help you hire the right people to help your practice grow.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.