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Working Interviews: Protect Yourself NOW!

By July 9, 2014October 21st, 2021Employment Law

Interviews are tricky.  How much can you really get to know about someone during a 30-minute interview?  What’s more, how can you make sure they have all the practical/clinical skills they claim to have on their resume?

Well, some dentists have found it helpful to make their hiring decisions after having a candidate attend a working interview.  But, while a working interview can give you an edge when hiring staff, it may also land you in hot water if the proper steps are not taken to ensure legal compliance.

What is a working interview?

Generally, a “working interview” is where a candidate is asked to come to the office for a few hours or over a period of a few days to perform practical, hands-on work at the practice.

A working interview, whether used in conjunction with a traditional interview or on its own, gives the hiring dentist an opportunity to analyse the skills and competency of the potential employee as well as their social skills and how they work with the rest of the team.

Are working interviews legal?

At present, there is no legislation or case law in Ontario stating that working interviews are illegal.

The Employment Standards Act 2000S.O. 2000 c.41 (the “ESA“) does not specifically deal with working interviews.  But this does not mean that you are precluded from following the ESA when it comes to the interviewee.

Even if you classify a working interview as “training” for the potential employee, this is not enough to exempt you from paying him or her.   This is because the definition of employee in the ESA includes “a person who receives training from a person who is an employer”.  

What does all this mean?  Well, even though there is not yet any legislation dealing with this issue, you should really consider the potential issues that may arise when you allow a non-employee access to your facility.

Here is what you need to keep in mind when scheduling your next working interview:

1.  Get it in Writing

In order to avoid many legal issues which may arise in a working interview, my suggestion is that you always provide the interviewee with a letter to sign prior to conducting the working interview.  The letter should outline the following:

  • the working interview process;
  • when they are expected to attend;
  • how long they are expected to attend;
  • whether they will be paid or if they are undertaking the working interview on a volunteer basis;
  • the rate of pay;
  • that they are not an employee of the company until presented with a formal contract; and
  • that they agree not to sue the company for compensation or any other employment related matters

2.  Payment

There is no such thing as free labour.  If you intend on having the candidate perform any job duties whatsoever (including something as simple as answering phones or filing) then you should pay the interviewee  at least minimum wage.  As of June 1, 2014 minimum wage is $11.00 per hour.  This number is ever-changing so be sure to consult the Ministry of Labour’s website for updates.

What happens if you don’t pay?  Usually, nothing.  But, the interviewee may lodge a complaint with the Ministry of Labour or bring you to court to recover the wages for their working interview.

3.  Questions / Conduct

Just like at traditional interviews, there are certain questions and topics you should avoid discussing with the interviewee.  For more on this, please refer to my earlier blog 10 Illegal Questions you CAN’T ASK Potential Employees.

Also, just like with your existing employees you should be mindful of any inappropriate behaviour among team members (including sexual harassment, bullying, etc.)

4.  Other Rules

If the interviewee will be at the dental practice for at least 5 consecutive hours, be mindful that, just like your existing employees, you need to give them at least 30 minutes break.

I suggest you avoid having the interviewee at the dental practice for more than 8 hours per day because then you may run into issues of overtime pay.  For more information on overtime pay, you can read my blogs Overtime Pay – What Dentists Need to Know Part I and Overtime Pay – What Dentists Need to Know Part II.

Working interview best practices

 Here are some tips on keeping things above board:

  • complete a traditional telephone / in-person interview first, including checking references and conducting any background checks;
  • conduct working interviews only once you are sure that this is the candidate you are interested in hiring;
  • provide the candidate with the letter (outlined above) and have them sign it before they attend the working interview;
  • do not allow the candidate to have unsupervised access to client files, money or confidential information (the candidate may be asked to sign a confidentiality agreement to alleviate any issues around confidential information);
  • always have someone there to supervise the candidate regardless of what they are doing;
  • ensure someone is there who can answer the candidate’s questions;
  • do not allow candidate to operate machinery, lift heavy boxes or do any other physical activity which may result in a workplace injury.

If you have a dispute with an employee or want to avoid one, contact our empoloyment team.  We are your legal dental team.

The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.