What is a Working Interview?
The term "working interview" is deceptively simple. To put it plainly, it describes the scenario in which the candidate for employment works for a period of time for the employer to assess their skills. This sounds a lot like traditional work, and many times it is. The difference lies, however, in things like pay and intention. In the traditional interview process candidates submit a resume or application, often fill out a job application, undergo the interview process, and then are hired if they make the cut. But with a working interview, the candidate skips the first few steps. They are not hired yet and they do not fill out an application for employment. Instead, they "volunteer" to come to the office to do the work without compensation.
The working interview may also be referred to as a "tryout". However, what the employee is trying out may be different from a job. The prima facie intention of the working interview is for the employer to get to know the applicant and to see if they will fit in well with the rest of the staff . Although this intention may seem harmless, the working interview is the practice of turning an audition into a trickle-down labor force. The working interview has its place in certain fields. It is not uncommon in educational and healthcare settings to have students or interns work before being hired on. With these types of temporary workers, the intention is that they will become paid employees. However, this is not how the working interview should be utilized in most businesses. The theory behind the working interview is that it will save the business money. Why pay someone to do the work when they will do it for free? Why pay someone if they may not be long-term employees? The problem is, 9 times out of 10 the applicant ends up doing the job and becomes a long term employee. The applicant sits down and begins filing away at the mounds of paperwork to be done. They don’t have an office of their own so they sit at a table out in the reception area and answer the phone calls. They begin to learn the ropes of the business and do exactly what they would do if they were hired. The only difference is they are not on the payroll.
A Guide to Legal Working Interviews
While the criteria for what constitutes a "working interview" may be (and often is) called into question, the legal issues surrounding working interviews are varied and far-reaching. At the federal level, there are arguably three limiting factors: 1) state minimum wage requirements; 2) federal minimum wage requirements; and 3) the Fair Labor Standards Act ("FLSA"). First, as with any employment analysis, employers must consider any state minimum wage requirements. Although most state wage laws mirror federal law, some state laws do not, so employers in those states should consult their local laws when considering working interviews. Federal minimum wage law also must be considered by employers, as the FLSA requires that all employees in the U.S. be paid minimum wage. For example, Georgia’s minimum hourly wage of $5.15, while lower than the federal minimum, remains higher than what many employers pay working interview candidates per hour of job shadowing. Even with state and federal minimum wage laws, employers are permitted to pay such employees less than minimum wage for the trial periods in certain circumstances, particularly if the work performed by such individuals can be proven to provide them some benefit that ultimately impacts their job performance (e.g. if the interviewing candidate will have superior knowledge about the company culture and work environment as a result of a working interview that will enable them to best perform their duties once hired). In such cases, the even lower Internships and Unpaid Internships section of this publication may apply.
In addition, the FLSA covers a wide range of issues relating to working interviews and potential "comp" time. In very limited circumstances, an employer is permitted to give an employee "comp" time for hours worked in excess of his/her regular schedule, including before or after a normal shift, at lunch, or on a weekend or federal holiday. Further, even if an employer does not permit an employee an hour or more of unpaid meal time, the employee may still be entitled to other types of "comp" time. The periods in which an employee may be entitled to comp time are very limited (see the chart in the "Comp Time" section) and are left largely to the employee’s discretion. The FLSA also contains a "trial period exception" that, similar to the "comp" time exception, allows the employer to treat hours worked outside of the employee’s normal schedule as a "trial period." Although an employee is entitled to the benefit of the exception despite not having been expressly told by the employer that hours worked would be considered job-related training or interview time, employers are not required to offer trial period comp time to employees that work under an "alternative work schedule."
Several states and municipalities have laws that are not addressed in this article that relate specifically and only to working interviews. Employers are encouraged to consult local counsel to ensure that they are complying with all required state and municipal working interview requirements.
The Employer’s Side
Employers choose to conduct "working interviews" because they want candidates to show what they can do on the job. It streamlines the hiring process, reduces the number of interviews that must occur, requires less paperwork, and can lead to faster hirings. Working interviews provide an employer a chance to test out a potential hire for a period of time before hiring them—effectively a prolonged and more intensive version of the typical job screening interview.
In California, there are a number of benefits to working interviews. The primary benefit is that the employer can assess the "on the job" skills of the candidate as they relate to the job the employer has open. For example, if the position requires high speed data entry, the employer can invite applicants for a working interview to see who does the best job at high speed data entry on a computer keyboard. Another example might be a property manager for a multi-tenant office building where the applicant is a former tenant of another building. The employer may wish to give that applicant to spend time working through answering the concerns of the tenants they have already won over as a tenant customer, and see how that applicant applies that experience with handling tenants in the new building.
There are, however, significant legal risks for employers should the working interviews be improperly administered. For example, if an incoming applicant is required to use his or her own tools or equipment, the employer should be prepared to prove to the Labor Commissioner that the employee was not actually performing work for the employer but was actually an independent contractor. If there are multiple such contractors within the employer’s organization, the Labor Commissioner could view that as a failure to treat those contractors as employees and require the employer to pay minimum wage, overtime, and the like. If the applicant is found to be an employee (as opposed to an independent contractor), the employer has strong incentive to ensure that the work product produced during the interview is not the sole work product of the day, but instead is supplemental to the training that would be provided to all employees in that position. This goes back to the fact that the employer must be able to show that the applicant was not working for the employer but was instead simply training for the position (which is common in some industries), and that the employer was not deriving any benefit from the work being done by that individual.
The risk for the employer is that they will be held to the standard of having hired an employee, even when the intention of the employer was not to hire an employee but to bring in a contractor. For many courts in California, this kind of risk is a headache they are more than willing to pass along to the Labor Commissioner in the hope of opening up a larger claim against the employer.
Candidate Rights on a Working Interview
Job candidates have the right to expect that they are compensated for their work, including "working interviews." This means the candidate should be paid the same as other employees performing the same function. If the working interview is taking place in a disputed classification situation, the candidate must be paid the minimum rate required by the terms of the union agreement in the place of employment or the applicable City or state Wage Order, if higher, or 2 the current minimum wage of $13.00 per hour. Labor Code Section 406.5 and Industrial Welfare Commission (IWC) Wage Orders 1 through 16 explicitly require that employees be compensated for time spent "waiting for or performing any work, . . . paid at least minimum wage for all hours and days worked." A working interview that requires an applicant to work for two hours or more is prohibited unless both the employee and the employer specifically agree to it beforehand and the employee is compensated the hourly wage for all hours worked , no matter how long it takes. The employer cannot deduct anything from the candidate’s compensation for any reason, including lunch breaks and personal items such as safety shoes and clothing.
Employers may not discriminate or harass candidates and must be familiar with their other legal requirements to candidates under California law, including criminal background checks, the Fair Chance Act, rest and meal break regulations, the AIDS Leave Law and the California Family Rights Act. If the candidate will be working with hazardous materials or in dangerous environments, the employer is prohibited from asking for his or her social security number, driver’s license number or other government identification unless the candidate’s position cannot be filled by someone else, he or she has been hired for janitorial work or the position involves a "purely casual" relationship.
Best Practices for Legal Working Interviews
To set yourself up to rely on the presumption that a work arrangement is truly an interview between the employer and applicant, the following best practices are suggested:
- Contract with the applicant up front that the candidate will not be compensated if s/he is interviewed through a working interview or trial day.
- State in writing that the applicant understands that the working interview/trial day is not a term contract and leaves either party with the right to walk away without severance or notice.
- Have the applicant make the commitment to come in for the working interview and recognize that it is not a mandatory term of employment that he/she needs to do so. Therefore, there should not be punitive measures or an application form that threatens the applicant for not showing up for the working interview or for not completing the assignment.
- Ongoing documentation of all interactions with the job candidate during the working interview, including documenting outcome and enhancing performance feedback to demonstrate that the working interview is only being used for assessment and not to evaluate if the job is a good fit for the applicant.
- Ask the candidate for his/her views of the working interview and to confirm no one has sought to persuade or compel them to work for free.
- Design your human resources policies and procedures to support this approach.
Recent Cases and Legal Developments
In recent years, a number of cases have clarified whether working interviews exist under California law and, if so, whether businesses may pay their working interview candidates less than minimum wage. In 1989, in the seminal case of Futrell v. Bank of America, 190 Cal.App.4th 1418, the Court of Appeal for the Second Appellate District stated, "[a]n attempt to make prospective employees work for free, under the auspices of an ‘interview,’ would seem to have no valence whatever under California law." The Court then stated, "[w]hile plaintiffs did not challenge the trial court’s finding that the ‘working interview’ was ‘pre-employment training,’ as apparently permitted by the applicable IWC wage order, we do not think it is necessary to classify it as such in order to show that [the employer’s] interpretation of [the wage order] cannot be sustained."
In Fernandez v. California Natural Resources Agency, 173 Cal.App.4th 222 (2009), the Court of Appeal for the Third Appellate District held that a non-exempt candidate who works for an employer to obtain a job offer is entitled to the hourly minimum wage for his or her time. The candidate is not entitled to overtime compensation or meal or rest break premiums if he or she works for only eight hours in a single day and does not work for more than 40 hours in a single week. Three years later, in Quintiliani v. FirstChallenge, LLC, 2012 U.S. Dist. LEXIS 7814, *6-8 (N.D. Cal. Jan. 5, 2012) , the Court of Appeals for the Ninth Circuit ruled that an unpaid working interview does not exist under relevant wage orders or California common law because they do not actually provide for an unpaid "work week." Although the Court held in FirstChallenge that the unpaid working interview in question did not exist in California, the courts will continue to fashion their opinions to specific facts presented to them in a work week analysis.
Interviews have long been exempted from the requirement to pay for time worked because the Labor Code and applicable IWC wage orders compiled during the twenty-first century do not define the term "hours worked" even though "hours worked" is a foundational term within the California wage-and-hour scheme since the Labor Code defines the statutory minimum wage by way of hours worked. Consequently, many employers have interpreted interviews to be excluded from the definition of "hours worked" based on California Supreme Court case law defining uncompensated attendance as "hours worked." However, in Brinker there is dissonance between language in the opinion which appears to state that the paying for interview time is outside of hours worked notwithstanding the absence of legislative authority and the previous case law interpreting legal authority over uncompensated time. As a result, while it is clear that interviews are not expressly excluded from the definition of "hours worked," working interviews that continue for several days followed by a series of uncompensated meetings may exceed the thin edge of Brinker’s thin blade exegetically and practically can be argued to be compensable as hours worked.