By: Faith Searles, Associate, Tampa

In many industries, turnover is a major drain on the resources of an employer, so ensuring the retention of qualified new-hires is a key component to keeping the employer out of the red. Many employers seek to develop tactical strategies that will allow them to streamline the application process and make smarter hiring decisions with greater efficiency. Traditional methods of evaluation, including reviewing resumes and conducting interviews, are often unreliable, subjective and ultimately serve as poor predictors of job performance. Consequently, either by trial and error or by design, employers may develop alternative strategies or means of assessment that can help dramatically reduce the time spent reading resumes and conducting interviews. These pre-employment assessments often help reduce the time and costs associated with hiring.

One common sense approach to identifying qualified candidates is to employ a skill assessment in an on-the-job training type scenario. Simply put, have the applicant perform some of the tasks that he or she may be required to perform in the desired position. This trial-by-fire approach may be practical, but when does it jeopardize the employer from the workers’ compensation perspective? Who is responsible for the applicant when they are injured during a pre-employment skill test or on-the-job training designed to determine their skill sets? When does the “rubber hit the road” for an employer with applicants in the trucking industry or delivery positions? Pre-employment assessments are certainly useful, but an employer must be cautious to avoid developing practices that generate compensable workers’ compensation claims, even if they do not classify an applicant as “hired” at the time of the incident. Carriers must be aware of the factors considered by courts when examining such claims in order determine compensability.

A claim is compensable and the carrier must provide benefits to a worker who has sustained (1) an injury, (2) by accident, (3) that arose out of, (4) and occurred in the course of employment, per § 440.02(19), Fla. Stat.

F.S. 440.02 defines who qualifies as an employee in subsection (15)(a), which states that:

“Employee” means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.”’

Generally, compensability of a claim that occurs during the hiring process comes down to how much “control” was exerted over the “employee” at the time of the hiring process. A case decided by the First DCA in line with the truck driving illustration above exemplifies this idea of “control” and outlines the factors considered by the court.

In Jenks v. Bynum Transport, Inc., 37 Fla. L. Weekly D 2859 (Fla. 1st DCA, Dec. 17, 2012), the claimant was a truck driver who submitted an application online and was later contacted by a recruiter for the employer who requested he attend a two day orientation session.  Accommodations and transportation for the orientation session were provided.  As part of the orientation, applicants were required to submit to a physical evaluation, a drug screen and complete a driving test.  If orientation was successfully completed, employees would be paid $50.00 per day for their time spent attending orientation. On the second day of orientation, while in route to lunch, Jenks was involved in a motor vehicle accident. Subsequently, he successfully completed orientation, was provided his orientation pay and went on to complete one trip for the employer. He then filed a Petition for Benefits seeking compensability of injuries sustained in the motor vehicle accident. The employer defended against the Petition arguing Jenks was not an employee at the time the accident occurred.  In support of its position, the employer advised that the orientation had not been completed, background checks were incomplete, and the drug screen had not yet been performed.  Thus, several qualifying events had yet to occur before Jenks would be deemed eligible for hire.  Jenks contended the orientation pay constituted wages, the background investigation was complete, and that he received a firm offer of employment. The JCC found that he was not an employee at the time of the accident and denied the claim.

The First DCA reversed, finding Jenks was an “employee” for the purposes of workers’ compensation. The court noted that although a formal contract of employment had not been made at the time of the accident, the employer had control over the claimant during the orientation period, paid for lodging and transportation, and the employer’s payroll characterized the funds paid to candidates for orientation attendance as “wages.” Considering these factors, Jenks was an employee at time of the motor vehicle accident and, therefore, the accident was compensable. 

Among concerns employers may have with regard to premise liability or running afoul of anti-discriminatory laws (such as the ADA or the EEOC), they should consider what impact per-employment assessments may have on the compensability of workers’ compensation claims. Carriers and adjusters must be aware of such considerations when evaluating compensability. In addition to the issue of how much control the employer asserts over the applicant at the time of the injury, there are other considerations, including whether an “implied contract of hire” could be found, whether there was a benefit to the employer, and if the applicant received any form of remuneration. While a driving test for a trucker or cooking test for a chef may not appear to have a direct benefit to the employer, some courts have determined the benefit provided was the employer’s ability to determine if the applicant/claimant could perform the desired job tasks. As noted above, these pre-employment assessments do after all allow them to streamline the application process and make smarter hiring decisions with greater efficiency; thus, employers receive a monetary benefit from the applicant/claimant’s performance of the test.

There are certainly benefits to pre-employment assessments as well as risks. Employers can avoid the pitfalls by carefully choosing the wording of any correspondence to the applicant that may imply engagement, carefully avoiding classifying any payment for participation as a “wage,” and limiting the control exerted over the applicant at the time of the assessment (i.e. choose an off-site location). A savvy claims adjuster may be able to gain further information with regard to these considerations from the employer and the applicant/claimant. Defense counsel may then use the additional information obtained to make recommendations regarding compensability, moving the claim along for either a denial or picking up compensable claims, and successfully avoiding penalties and escalating attorney’s fees.