CEU (Continuing Education Unit): 2 Credits
Educational aims and objectives
This article aims to present a few essential requirements in the hiring process for a dental practice.
Orthodontic Practice US subscribers can answer the CE questions by taking the quiz to earn 2 hours of CE from reading this article.
Correctly answering the questions will demonstrate the reader can:
- Identify legal and illegal interview questions.
- Understand the importance of proper storage and disposal of employee documents.
- Recognize the elements of an offer of employment.
- Recognize the difference between exempt and nonexempt employees.
- Realize the importance of proper employee documentation.
Ali Oromchian, JD, LL.M., discusses the process of hiring and welcoming a new team member
This article presents a few essential requirements in the hiring process for a dental practice. It discusses the pros and cons of a working interview versus a nonworking interview based on legal considerations as well as practical. In addition, the article discusses the rigorous rules required by the various government agencies regarding prohibited interview questions and the consistency of the interview process. The collection and storage of employee documents is also discussed with references to various state and federal retention requirements. In addition, the reader is made aware of the difference between exempt and nonexempt employees and the necessity of not misclassifying an employee due to steep fines. Finally, the article details the required legal documents upon hiring and suggests some additional documents to protect the practice in case of dispute.
Building a successful working team is essential to the success of any practice. The process of hiring and welcoming a new team member is fraught with pitfalls, but with careful preparation those pitfalls can be minimized. The interview is an essential part of the process. This is the first face-to-face chance for the practice to evaluate the candidate and the first chance for the candidate to evaluate the practice. However, the employer must abide by certain rules regarding what questions can be asked, and what cannot be asked. After a successful interview, the offer letter is next with explicit details of the position and what the employee can expect in the way of benefits — pending successful completion of background checks and references. Before any new team members join the practice, it is essential that they be classified correctly as exempt or nonexempt. Finally, collecting and securely storing all documents pertaining to the new team member is an important part of any hiring process.
A trend in the dental industry is to assess a candidate’s skills through a working interview. Although a working interview might seem like an ideal way to get a feel for how a potential team member fits into the actual environment of the practice, it is risky. If a candidate uses your equipment on your patients and under your supervision, the Department of Labor (DOL) considers them as working in your office, and thus, your employee. Furthermore, you cannot classify them as a Temp nor as a Contract worker. Misclassification of an employee can cost you dearly in fines.
In order to avoid violating the DOL1 rules, you need to legally “hire” any candidates for the time spent working at your practice, even if it is only for an hour. You must pay them at least minimum wage, deduct any taxes due, perform background checks and credential checks to protect your patients, and verify their eligibility to work in the United States among other requirements. It is recommended that you provide an offer letter of temporary employment that clearly states the start/end date of the working interview. As a protection for your practice, it would also be advisable to make sure they are covered by Workers’ Compensation in case of injury while working at your location. The working interview is indeed fraught with risk.
A better option than the working interview is the Behavioral Interview where you ask the candidates how they would handle a relevant work or life situation. For example: “How have you dealt with an angry or upset patient?” Or, “Have you ever had to defend a patient’s point of view? What did you do? Why?” Another one could be: “Tell me about a problem you solved in a creative way.”
Another option would be to use a Skills Test where the candidates describe how they would perform a critical task. By using these methods you can gain an understanding of how your candidates would act in a pressure situation that might not occur during the few hours of a working interview.
Many interview questions are prohibited under the Americans with Disabilities Act (ADA)2 and the Fair Employment and Housing Act (FEHA).3 Many states have passed laws that prevent you from asking about previous salary history. In addition, some states also restrict questions about previous convictions until later in the interview process. With these restrictions, you might wonder how you can ask questions that won’t get you into trouble. The secret is in the framing. Focus on questions that directly concern the requirements of the job rather than questions that address the candidates’ personal circumstances.
For instance, you cannot ask if the applicant is a citizen, but you can ask if they are authorized to work in the U.S. You may not ask about their observation of religious holidays, or about childcare issues, but you may ask if they will be available to work the required schedule. Rather than asking about the candidate’s particular disability, instead focus on the job, and ask if they can perform the required duties.
Finally, you must ask all candidates the same set of questions, in the same order, and evaluate them with the same criteria and the same scale. To avoid claims of discrimination, it is essential to stay consistent throughout the interview process.
A potential team member’s resume contains personal information about the candidate and as such should be kept secure. You will need to store resumes and applications so that they are accessible only to those who require the information, such as human resources or hiring managers. In addition, they must be disposed of in a secure manner.
In most cases, resumes and applications must be kept on file for at least 1 year from the date of the position being filled, whether the position is temporary or permanent. In cases of ongoing litigation, you are required to keep those documents until the litigation is settled. However, if you suspect that the team member is over 40 years old, you might need to keep their file for 2 years according to some Age Discrimination in Employment Act (ADEA) requirements. There are also situations where the Americans with Disabilities Act (ADA) requires a 2-year retention of those documents. Because of these and other requirements, it is better to err on the side of safety and keep this paperwork for 2 years.4
Offers of employment
Once you have found the ideal person to join your team, you need to make a written offer. This document acts as both a clarification of the conditions of employment and protection for your practice in case of misunderstandings. Ideally, the offer letter extends a warm welcome to the new team member and generates excitement about the position. It should clearly state basic employment information such as the job title, salary, overtime eligibility, start date, and supervisor. It should also provide general information about any practice benefits and eligibility dates for those benefits.
To protect the practice, the letter should also notify the new team member that the employment is an “at-will” position if you are located in an at-will state. This means that the employee or employer may terminate employment at any time, for any reason, except an illegal reason. This is spelled out in Title VII Civil Rights Act of 19645 and other state or local laws governing employment. Under Title VII, an employer is prohibited from discriminating in matters of recruitment, hiring, discipline, and termination based on race, national origin, gender, religion, age, and disability.
In addition, the offer letter should notify the candidate that the offer is conditional, pending the successful completion of background and reference checks, and/or drug tests, if applicable.
Exempt or nonexempt?
Once your new team member has been selected, the question becomes whether they are classified as exempt or nonexempt.
An employee who is nonexempt is covered under the Fair Labor Standards Act (FLSA)6 overtime requirements, which means that he/she is entitled to overtime pay for time worked over 40 hours per week, or over the daily limit in some states. Some states also have strict rules regarding meal and rest breaks for nonexempt employees. Usually this means team members who are paid hourly are nonexempt, but there are exceptions. Starting January 1, 2020, federal regulations specify any salaried employee who earns less than $35,568 per year is considered nonexempt and is entitled to overtime pay. However, these salary amounts might vary in your state. As always, check your state regulations.
The U.S. Department of Labor classifies the following employees as exempt:
- Outside sales employees
- Certain computer employees.
Exact definitions for each area can be found on the DOL’s website.7
If employees are exempt, it means they are exempt from the FLSA requirements and are not compensated for working over 40 hours per week (or over the daily limit, depending on your state). Every exempt employee must be paid on a salary basis of more than $35,568 per year starting in 2020. In addition, each employee’s primary duties must fit his/her category. For example, an executive must run the whole or a part of the practice and have the authority to hire and fire. A manager must manage at least two people, including interviewing, hiring, firing, setting pay, and may perform various other duties. Administrative positions must be non-manual and related to the management of the business. In other words, the actual duties of the employees must match the category in which they are classified as exempt. The FLSA rules are clear regarding which employees are exempt and which are not. Violations of those rules can be costly to your practice.
New documents and onboarding
In addition to the offer letter, the candidate is legally required to receive the following documents at minimum:
- I-9 (confirming eligibility to work in U.S.)
- State withholding tax
- Employee benefit notifications
- Any additional state required notifications (check your state’s regulations)
The following additional documents will help protect your practice:
- Employment application
- Non-compete agreement (if enforceable in your state)
- Non-disclosure agreement
- Employee invention form (if applicable)
- Employee handbook and acknowledgment form for same
Having these documents on file will clarify the status of the new candidate as a member of the team. Proper documentation is also essential should any future discrepancies arise. Your careful record-keeping not only protects you and your team member, but ensures that you are both aware of the benefits and limitations of the employment status.
From the initial interview to welcoming a new team member, hiring can be a stressful process. However, by following these few guidelines you can save many unforeseen headaches and ensure that you build the best team possible for the success and growth of your practice.
Author’s note: This article is not to be taken as legal advice. Please consult a lawyer regarding compliance with federal and state laws in your area.
After demonstrating effective hiring practices, engaging employees will help your practice to maintain productivity and profit, according to Manon Newell, JD. Read all about it here.
- U.S. Department of Labor: Wage and Hour Division. Misclassification of Employees as Independent Contractors. https://www.dol.gov/whd/workers/Misclassification/index.htm?apartner=undefined. Accessed October 11, 2019.
- U.S. Equal Employment Opportunity Commission. Job Applicants and the Americans with Disabilities Act. https://www.eeoc.gov/facts/jobapplicant.html. Accessed October 11, 2019.
- California Department of Fair Housing and Employment. Employees and job applicants are protected from bias. https://www.dfeh.ca.gov/employment/. Accessed October 11, 2019.
- strategic HR inc. Keeping Resumes and Applications. https://strategichrinc.com/keeping-resumes-and-applications/. Accessed October 11, 2019.
- U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964. https://www.eeoc.gov/laws/statutes/titlevii.cfm. Accessed October 11, 2019.
- U.S. Department of Labor. Handy Reference Guide to the Fair Labor Standards Act. https://www.dol.gov/whd/regs/compliance/hrg.htm. Accessed October 11, 2019.
- U.S. Department of Labor: Wage and Hour Division. Fact Sheet 17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA). https://www.dol.gov/whd/overtime/fs17a_overview.pdf. Accessed October 11, 2019.