Are “Working Interviews” Legal?

by Gray Reed & McGraw
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One of my dental practice clients called this week to inquire about an idea they heard of recently called a “working interview.”  The idea is to have an hygienist come in for a couple of days to find out whether they are good at their job without officially hiring them.   What is better, my client said, “you don’t have to pay the person for their time.”

I don’t know how the idea of working interviews became so pervasive in the dental world.  It was probably a topic of discussion at one of those building dental practice seminars. From there I imagine it spread like wild fire.  And, like the game we used to play in my kindergarten class passing some phrase down the line, the details of what was said at the seminar got lost in the translation.  Dentists everywhere got the idea that a working interview is a way to find out if a prospective employee will work for you without having to follow any of the employment law rules in the process.

It is time to put out the straight dope on the subject and shatter a few myths in the process:

1.  Pay – The theories on pay for a working interview are all over the map.  Some, like my client are lead to believe that you don’t have to pay the person for their time.  Others are told that you can just issue a check without proper withholding and 1099 the payment.  Wrong. Wrong.  If you bring someone in for a working interview you must pay them for their time in compliance with state and federal law and make appropriate withholding.

2. Paperwork – Some believe that since they are only going to be there for a few days, you don’t have to do new-hire paperwork.  Just skip the I-9, background check, application, and W-2.  Wrong again.  If you hire anyone – for 1 day or 1,000, you have to do new hire paperwork.

3. Unemployment – Still others believe that you are not responsible for unemployment if you choose not to hire the person. Wrong, yet again.  Unemployment tax is tied to the prospect’s wages during the preceding year, not the employer.  That said, the shorter period the person is employed by you the less they will draw from your unemployment account.

Yes, I’m a kill-joy.  My client was looking forward to the free time from a prospect employee and the ability to learn whether someone will be a good fit without having to go through all the motions.  Unfortunately, most of what he thought is not legal.

But is there anything that can be done?  Yes there is.  Depending on how long you would like to conduct your interview, we can create a day contract or a week contract for the prospective employee.  This will limit your exposure under unemployment compensation laws, and you can even reduce the amount you pay.  Where you might pay a good hygienist $20 per hour or more as a full time wage, you can pay them minimum wage during a working interview.  You might also forego the background check, etc, during this brief period having the person only complete a W-2 and an I-9.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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