Human Resources Questions for Dentists: Blue nail polish, and 'working interviews'

Dentist owners of dental practices may find all the human resources issues of handling staff a bit overwhelming. This regular column on DentistryIQ from some HR experts can help make the issues more managable.

Content Dam Diq Online Articles 2016 01 Nail Polish 1
QUESTION: Approximately two years ago I asked that my staff keep their nail polish color as natural as possible. I provided them with a color chart with acceptable colors. The staff is not happy and continues, two years after I made the request, to wear colors that are not in the color chart. What can I do? Is it legal to ask them to not use certain colors, such as royal blue?

ANSWER: Beyond the laws about uniforms and who is responsible for the expense of any uniform required by the employer, the employer has discretion in applying dress code rules. There actually isn’t any law regarding dress codes for employers. That is to say, there is no law or rule that specifically says you can or cannot have certain dress code requirements.

When it comes to dress codes and legal challenges to them, it usually comes down to matters of discrimination and cost. For example, employers who require a dress code that violates someone’s religious beliefs could find themselves in trouble, depending on how that situation is handled. Or, a dress code that puts significant financial burden on just females could be challenged and could be a problem.

In your case, it appears you are not requiring nail polish. It appears that you are simply saying that if employees choose to wear nail polish, it must fall within certain color guidelines. Since you are not requiring the nail polish, cost issues can be ruled out. Because this isn’t a requirement, we can probably rule out discrimination issues as well. It would seem that your dress code rule is legal and shouldn’t be a problem.

That being said, I won’t rule out the possibility that some employee could come to you and say that wearing “royal blue” nail polish is part of his or her religious beliefs, and not being able to wear it is a violation of his or her rights. If this were to happen, then you may need to consider religious accommodation after going through certain appropriate steps. (Be sure to seek assistance if or when this happens.)

Until that occurs, you may enforce your rule. For those few rogue employees who refuse to obey the rule, you must hold them accountable for their actions so they know you are serious. For example, verbal warnings, written warnings, suspensions without pay, sending them home to correct the problem immediately before allowing them to work, making them take off the polish at work (have a bottle of nail polish remover handy), or termination of employment are all steps you can take to enforce the rule.

QUESTION: We are in the process of hiring a hygienist for our team. We have been through the first part of the interviews and agree on one particular hygienist who we feel would be the right fit. I would like to have her come back for a second interview and was wondering if I can do a "working interview," have her come in and work a couple of hours to see how she interacts with patients and staff? I have had heard of practices doing this. How would this work?

ANSWER: Working interviews, in particular, present complex issues that have serious ramifications for dentists who, knowingly or unknowingly, fail to be aware of or properly comply with the requirements. Here are two actual examples:
1) A dentist was interested in hiring an applicant as a dental assistant and had her come in for a “working interview.” She filed successfully for workers’ compensation as an employee, alleging that during the day she fell off a chair and hurt her back.
2) An applicant came in for a “working interview” and was not hired. She filed for unemployment. The doctor was ruled to be her last employer and liable for the unemployment claim.

While it is quite common in the industry to have applicants demonstrate their job-related skills by asking them to participate in a “working interview,” you can see from the two examples that this extension of the verbal interview can become a costly problem for the employer if not handled correctly.

In some practices, the “working interview” is paid time for one or a few days. In terms of wage and hour rules this is not a problem, provided the person receives compensation for his or her time, the rate in effect is at least minimum wage, and the individual is paid for applicable overtime hours. In many practices, the “working interview” is conducted for one or a few days and is not paid. This is not allowable. If you ask an applicant to perform work at your practice, whether “officially hired” or not, and no matter for how short a time period, it is work time and must be paid.

Since individuals performing “working interviews” are considered your employees, your workers’ compensation insurance comes into play if the person is hurt on the job. You will likely be considered the person’s most recent employer if the person does not remain employed and seeks unemployment compensation. Unfortunately, there is no avoiding this problem when conducting “working interviews.”

This article first appeared in DE's Expert Tips & Tricks. To see past issues or to subscribe, visit dentistryiq.com/newsletter. For more Practice Management articles, visit dentistryiq.com/practice-management.

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Human Resources Questions for Dentists is provided by Tim Twigg and Rebecca Boartfield of Bent Ericksen & Associates. Tim Twigg is president and Rebecca Boartfield is a human resources compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists deal successfully with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit bentericksen.com.

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