HR Base Camp Roundup – August 3rd, 2022

This week, the top HR Q&As from our HR Base Camp Facebook Group and HR Solution Center involve how to classify a new employee when you’re not sure if they will work out in their role, how to approach the topic of family treatment benefits, and job abandonment considerations when an employee is dodging your requests for information about how long they will be out. 

Here are our top questions from the last week:

  1. Can I offer a new employee a 90-day temp contract to decide if I want to hire them?
  2. Can I have my hygienists clock out when they are performing free cleanings for family members?
  3. Is it job abandonment if an employee provides a questionable medical excuse for an absence and then won’t return my phone calls?

 
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Can I offer a new employee a 90-day temp contract to decide if I want to hire them?

I am looking to hire a new employee but I keep getting burned by new hires not working out. Is it a good solution to offer them a 90-day temp contract and, if everything goes well, then offer them a full-time position at the end of that period?

Short answer: No. 

We see versions of this all the time, sometimes even from business consultants who think this is a problem that needs a creative solution. Those “solutions” can include telling someone they are being offered a temporary contract with the possibility of ongoing employment at the end, or paying them by 1099 until you decide you want to continue working with them. Unfortunately, “solutions” like these can cause you even more problems than they solve. 

Unless you are in Montana, your state defaults all employment to employment-at-will. This means there’s no promise of ongoing employment. And even if you’re in Montana, the first 12 months of employment are at-will before the law kicks in that requires employers to have “cause” for terminating. 

What this means is that you aren’t promising any new hire that you will keep them for any set period of time. As soon as you find out they’re not a good fit for you, you can let them go. 

We know that’s not exactly the problem you’re trying to fix in this case, but it’s important to keep that in mind as you read further into why those “creative solutions” are actually unnecessary problems. 

First, why put a new hire in a contract for temporary employment? It kills your at-will status and makes it a lot harder for you to fire someone if that’s what you end up wanting to do. And you’ll likely lose out on a good employee if they feel like you’re overcomplicating the onboarding process. If they’re being offered a three or six month “contract,” the impression you’re giving is that you don’t intend to offer them the long-term employment they’re looking for. 

Moving onto the next bad idea, paying them by 1099 until you decide to hire them. If you’re a member, you’ve probably already heard this from us. You cannot simply choose to pay someone as an independent contractor because (1) it seems easier, (2) it’s a short term gig, or (3) because your accountant said to do it. 

There are laws defining who is an employee, and what it takes to be an independent contractor. There is zero question that if you are paying by 1099 for the first few months before you “decide to hire them,” that you are violating the law. If they are performing the work of an employee, they are an employee. And they are an employee from the start of their first day working for you. 

The extra steps it takes to onboard a new employee is nothing compared to the time and expense of dealing with the myriad of claims that can come from getting this wrong. By contrast, the DOL, state labor department, IRS, and your state unemployment agency will be happy to spend their time on this. Oh, and your worker’s comp insurance won’t be covering any injuries this “non-employee” sustains. 

So, let’s go back to where we started. Employment is at-will. Doing anything to change that is usually a decision business owners and managers regret. Your CEDR handbook explains that the first 90 days is a Getting Acquainted Period, during which you are evaluating their performance. But there’s no special legal status around that period, and trying to create one only causes problems. 

If you’re having problems finding or keeping the right person, we recommend taking a breather before frantically posting your job ad again. Take some time to think about what has gone right and gone wrong in the past, and what traits you’re looking for in someone new. We have a Difference Maker Toolkit to guide you through this. Try to look at your job ad, job description, interview questions, and onboarding process with fresh eyes to see where you may be able to try something different.  

 
Make sure your next hire is a difference maker. Click to download CEDR's Free Hiring Guide!
 

Can I have my hygienists clock out when they are performing free cleanings for family members?

I want to institute a new policy regarding employees, specifically hygienists, providing treatment to their families. We’ve always allowed employees to give their immediate family members free cleanings, but I don’t feel like I should have to pay them for this time when they’re already giving out free treatment. Can I require that those free cleanings be done off the clock when employees are not already scheduled to be working?

This is something we see come up fairly often in the Solution Center and we understand why – it seems logical that employees should clock out when providing a free service. 

But the reality is that having employees clock out to perform their work duties is actually not permitted under any circumstance. By law, employees must be paid for all work performed on behalf of the practice, even if the practice isn’t making money from it. And this applies across the board, regardless of whether the patient is solely using the practice benefit or they have insurance. 

That being said, you can still set specific family treatment times so that free treatments aren’t being done during business hours that are reserved for patients. Some employers we’ve spoken to do this by setting aside one or two days every month or two, or by staying open late on certain days and strictly filling those times with appointments for family.

This is another example of the type of policy that we frequently customize for our members in their CEDR Employee Handbooks, and another reason why it can be so dangerous to try writing your handbook yourself, to borrow your handbook from another practice, or to use a handbook that isn’t customized for your industry. 

For more on common employee handbook pitfalls, check out our Employee Handbook Guide here

 
Find a list of common illegal handbook policies in our Free Employee Handbook Guide. Click to download.
 

Is it job abandonment if an employee keeps calling out sick?

I recently had a tough conversation with an employee and she was pretty upset about it when she went home that day. She then called out sick every day for the rest of the week. Can I call this job abandonment and just accept her resignation?

We understand the frustration employers feel when an employee keeps calling out at the last minute and seems to be avoiding having to improve a performance issue. But, in a situation like this, it’s not job abandonment or any type of resignation. At least, not at this point. 

We refer to situations as “job abandonment” when an employee isn’t coming to work, they haven’t notified anyone at your business that they will be out, and they aren’t returning attempts made by management to contact them. Basically, if they’re a no-call no-show for more than a day or so. 

As frustrating as unexpected absences can be, if an employee makes contact and explains that they won’t be in, it’s not a no call no show since they have in fact been in touch with you and informed you they are unable to come in. 

If this is going on for several days, then we want to take a look at a couple things. 

First, does the employee have paid time off available to them that would cover these absences? If so, then it’s their time to use and it’s difficult to take issue with them using that paid time off – unless they are not following your policies around using that time, such as not notifying you in advance of their shift starting. 

Second, look at whether there are any protections surrounding these absences. Namely, if your state, city, or county has mandated sick leave, you want to be careful not to appear to be stopping her from using that protected time. And, be careful not to ask for a doctor’s note too soon, as those sick leave laws often restrict when you can make that request. 

Once you’ve gathered that information, here’s how to move forward. Send her something in writing advising her about the following items, as applicable: 

  1. The proper call out procedure; 
  2. Being out of paid sick leave; 
  3. The need to provide a doctor’s note excusing her prolonged absence and providing confirmation that she’s okay to return to work; 
  4. That, if she is unable to return by a certain date (let’s say after 5 days of calling out), you’ll need information from her and her healthcare provider about needing a leave of absence. 

We know what you’re thinking: “Of course we know why she’s calling out. She’s upset that we had to have a coaching conversation and she’s being passive aggressive!” And that may very well be the case, but you want to do things the right way regardless of how she is behaving. 

Going through this process forces the employee’s hand if she was never sick. She’s backed herself into a corner by faking being sick for so long and now she’s got to make a choice – either she will have to get back to work or make the decision to actually resign
 
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At CEDR, we help employers protect their businesses and build stronger teams. Because stronger teams build better workplaces, and better workplaces make better lives.

Have an HR question you need to talk through with an HR expert? Reach out to the Solution Center for expert guidance, or get your questions answered in our private, professional Facebook Group, HR Base Camp.

Aug 2, 2022

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.
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