By Daniel J. Schulte
MDA Legal Counsel
Published in the May 2005 issue of the Journal
Question: I recently interviewed a hygienist. As part of the interview I required the hygienist to perform teeth cleaning on my patients for four hours. I did not pay the hygienist. I felt I needed to actually see her performance to properly make my hiring determination. The hygienist (who I did not hire) is now complaining that I did not explain that this would be a "working interview" ahead of time and is demanding that I pay her for the services she performed. Do I have to pay?
Answer: Not informing a job candidate ahead of time that he or she will be expected to demonstrate their skills in the interview is a bit unfair. Expecting a candidate for a hygienist position to donate his or her services without providing any compensation not only results in a windfall for the dental practice (assuming the practice bills for the hygienist’s services) but may also be illegal.
Michigan’s Wage and Fringe Benefits Act (MCLA 408.471 et seq.) requires an employer to pay at least minimum wage to an employee. "Employee" is defined simply as an individual employed by an employer. To "employ" as defined by this statute means "to engage or permit to work." Therefore, by simply permitting the hygienist to work may be sufficient to trigger the minimum wage payment requirement of this statute. The failure to pay the required minimum wage is punishable pursuant to this statute as a misdemeanor. This could possibly subject the dentist responsible to a fine of not more than $1,000 or imprisonment for not more than one year, or both.
Working interviews also raise malpractice concerns. Michigan Administrative Code Rule 338.11408 states that the "removal of accretions and stains from the surfaces of the teeth and application of topical agents essential to complete prophylaxis" can only be performed by a registered dental hygienist and only when the patient is under the "assignment of a dentist." Proper assignment of the patient means that a dentist has designated the patient as his or her patient of record and has described the procedure to be performed by the hygienist to the patient. If a hygienist injures a patient during the interview, potentially both the dentist who designated the patient as her/her patient of record and the hygienist applying for the job will be liable.
It is very likely in this situation that neither the dentist nor the hygienist will have any malpractice insurance coverage. The hygienist candidate will either be unemployed (in which case it is very unlikely there will be any malpractice insurance coverage owned by the hygienist) or will be currently working for another employer whose malpractice insurance policy will not cover the incident, since the hygienist’s services were being performed outside of the scope of that employment. Since the hygienist is not yet an employee of the dental practice, the practice’s malpractice insurance policy most likely will not cover the claim. There is a high likelihood of a malpractice claim being made by the patient in this situation. Consider how you might feel when it is disclosed that your dentist was using you as a test patient as part of a working interview!
Given the requirement of Michigan’s Wage and Fringe Benefits Act, the nature of a hygienist’s services and the potential for the patient to be harmed and sue for malpractice, the best practice is to rely upon job references instead of actual services being performed to evaluate the hygienist’s skills.