Workplace Hiring

The Workplace Hiring Guide explains the legal difference between volunteers, interns, independent contractors, and employees. It is also important to ensure your hiring practices do not discriminate based on the following classes: Race, Color, Religion, Sex (including pregnancy), National Origin, Age (40+), Disability, and Genetic Information.


4 Types of New Hires

Employee Hiring Overview

Volunteers

A volunteer is an individual that freely performs hours of service for an organization without promise or expectation of compensation for their services. However, a volunteer does not necessarily lose their volunteer status by getting paid a stipend that covers expenses, reasonable benefits, or a nominal fee. An individual is not considered a volunteer if they are otherwise employed by the same business to do the same function. For example, a science teacher cannot volunteer to teach science at the same school that they are employed at. But the science teacher can volunteer to coach the basketball team.


Interns

Contrary to popular belief, interns are considered employees and must be paid minimum wage unless the employer can establish all of the following:

  • The training is similar to the type of job specific skills that would be taught in a vocational school.
  • The training is for the benefit of the intern, not for the benefit of the employer.
  • The intern do not displace normal employees. Instead, the intern works under close supervision of existing employees.
  • The employer cannot derive any immediate advantage from the activities of the intern, their operations may actually be occasionally impeded.
  • The intern is not necessarily entitled to a job at the end of the internship.
  • The employer and the intern understand that the intern is not entitled to wages for the duration of the internship.
  • If the six requirements (listed above) are not satisfied, the “intern” is considered an employee for legal purposes. This means that the employer will have to follow employee compliance laws and do things such as paying the individual a minimum wage.

    Documents You Will Need to Hire an Intern:


Independent Contractors vs. Employees

Properly categorizing a new hire as an employee or an independent contractor can have significant implications on your business. For example, unemployment compensation is funded by employer compensations based partially on how much they pay their employees in wages. Thus, an employer who only uses independent contractors would have to pay the state very little in unemployment compensation. Most states look to three key areas to determine if someone is an independent contractor or an employee:

  • Behavioral Control describes the amount of control that the employer has over how the individual does their job. Workers who are required to comply with another person’s instructions about when, where, and how to work are typically employees. Similarly, providing training to the worker so that they can perform tasks in a specific manner indicates an employee-employer relationship.
  • Financial Control.
    • Payment of business expenses. If the employer pays the workers business expenses or travelling expenses, this is highly indicative of an employee-employer relationship.
    • Investment. Independent contractors are more likely to personally invest in their own facilities and tools, things that are normally furnished to employees by their employers.
    • Realization of profits/losses. If the worker can realize a profit or loss from their activities, this is indicative of an independent contractor. For example, independent contractors are much more likely to set their own prices, give their own discounts, refunds, and promotions, and they are generally responsible for handling their own finances.
  • Relationship of the Parties.
    • Benefits. Providing a worker with insurance, a pension plan, PTO, vacation leave, and sick leave are all indicative of an employer-employee relationship.
    • Agreements. Look at the employment contract, this should assist in determining the bounds of the relationship.
    • Permanency of the relationship. If the worker is only expecting to work for a finite period of time, this is indicative of an independent contractor.

Use the image below as a handy way to determine if someone is an employee or an independent contractor:

Employee v Independent Contractor

Statutorily Protected Groups



Interviewing

When interviewing it is important that you only ask questions that are reasonably related to the job in question. For example, asking questions about whether the application has had any traffic violations in the past 5 years is not necessary for someone applying for a desk job.

Similarly, employers should try to avoid questions that unintentionally pertain to the worker’s protected status. For example, asking what years the worker attended high school or college seems innocent enough, however it reveals the worker’s age, which is a protected status in the employment context.


Pre-Employment Testing

Employers are allowed to require the worker to take a pre-employment test before a job offer is made. These tests are normally designed to test the workers skills in a particular area.

The test must meet the following criteria:

  • The test must only measure essential job related abilities.
  • The test must be required of all applicants for this position, regardless of disability status.
  • The test must accurately reflect the applicant’s achievement level or other relevant factors, and it may not reflect the applicant’s impaired sensory, manual, or speaking skills except when those specific skills are being tested.
  • The test must not be given for the purpose of discriminating against one of the protected classes.

Offer of Employment

A standard job offer should include the following details:

  • Salary
  • Benefits
  • Position job title
  • Name of the supervisor of the position
  • Anticipated start date
  • Other terms and conditions of employment
  • Be sure that the written employment contract has a clause stipulating that it supersedes all other oral/written agreements. This will protect your company from liability should there be a miscommunication between you and the new hire.