What is a Working Interview?
What are Working Interviews?
While the word "interview" implies a simple question and answer session, that’s not always the case. Enter the working interview or a test drive. A working interview is just how it sounds – an employer has a potential employee work for a day or two to see how they would perform in the job. While working interviews are fairly self-explanatory, they are much more commonly seen used for short-term employment than for full-time positions.
To understand how this type of interview is different from a traditional interview, we can look to a common example. Assume that Tim walks into a bank to apply for a teller position. Tim goes through the usual interview process. Then his interviewer tells him that their bank has a very strict policy of requiring a day-long working interview as part of the interview process. The interviewer assures Tim that he won’t be working for free; he’ll be paid his regular hourly wage for the day.
Then the interviewer takes Tim inside the bank, where he is watched as he interacts with customers , fills out paperwork behind the counter, and talks to other employees at the bank. Tim takes the scrutiny in stride and completes his day. The bank calls him the next day to offer him a position, but only if he agrees to a second working interview, and to work for another day. Tim agrees, and shows up for work again as a condition of employment. He works the same functions as the day before but is a lot smoother on the second day.
The above scenario is a pretty typical working interview, but not all working interviews are done for a day or for traditional reasons. For example, working interviews are often employed for creative professionals looking to get noticed by new clients. For instance, Andrew is a creative director but also does freelance projects in his spare time. He will often work for a client for a month without payment just to show them how valuable he is. Sometimes he gets the client without the promise of pay and sometimes he doesn’t, but he feels that it’s worth it to boost his portfolio and gain the respect of his peers.
The Law on Working Interviews
In many circumstances, applicants performing work for a prospective employer in the context of an interview can arise to a wage and hour issue. This is because federal and state labor laws consider the potential employment relationship to be firmly in existence once the applicant has begun performing work, even if it is only a trial basis. Under this assumption, an applicant performing any type of work must be paid for both training and interviewing.
Legal issues surrounding working interviews fall under federal and state wage and hour law, and include unpaid work, misclassification, and wage and hour issues. These issues are addressed below.
Unpaid Work
Under the Fair Labor Standards Act, no employee may be paid less than the federal minimum wage of $7.25 per hour. The FLSA also sets maximum hours worked so as to guarantee payment of both a regular wage and an overtime rate. Once an applicant performs actual work, whether in the form of a training period or trial period, they work hour limitations apply to an employer. Basically, the Federal Labor Standards Act dictates that once an employee performs work, employers may not fail to compensate the employee at the federal minimum wage nor may they otherwise fail to pay them at a premium wage for overtime work. This means that companies may not choose to conduct unpaid working interviews. While it is often difficult to prove work being performed or work being paid, as an employer it is best practice to be aware that employees performing work must be paid the applicable wage and overtime rates. If an employee is working and being compensated in cash, this is an indication that the employer is violating the Fair Labor Standards Act.
Misclassification
Misclassification of an employee occurs when an employer misclassifies the applicant as an independent contractor or otherwise. Because a working interview involves work being performed for an employer, it is necessary to assume that the applicant is an employee and that employment actually began when the applicant performed some work. In short, an employer misclassifying an employee cannot say that an employee was not working for the company, nor can they select some other employee who is misclassified as a temporary employee or an independent contractor. When an employee is misclassified, the employee or department of labor can report the employer for violating the FLSA by not paying the employee a minimum wage (or overtime). For this reason, employers should understand that if an applicant is going to be performing work for the company, they are legally obligated to pay them for that work.
Wage and Hour Issues
An application process is typically voluntary; therefore, entities who select a working interview should not rely on decisions permitting applicants to select their own wages as employment agreements. If the applicant is working and being paid an optional wage, this can reduce the company’s liability as the employee voluntarily selected the lower pay. However, an employee may always complain that their regular wage is less than the prevailing wage, for this reason, employers should ensure that they offer the applicable wage to applicants. In other words, the working interview is an employment agreement and applicants should be counseled on the applicable wage both before and after the start of the interview.
How to Conduct a Legal Working Interview
Employers should take the following steps to ensure working interviews satisfy the technical and practical requirements of applicable employment laws: Document Terms of Working Interview. Regardless of the duration, the terms of any working interview should be documented in writing and signed by the candidate prior to commencement. Depending on the circumstances, an email confirming the terms of the interview may be appropriate. The document or email should make clear that it expresses the candidate’s understanding of the terms of the working interview. An employer should be sure to include starting and ending times, duties to be performed, and details around payment for hours worked. Specifying a starting time and a maximum amount of time for the interview will help avoid extending the interview beyond the parameters of applicable law. Properly Compensate Candidate. Employers must pay a candidate for all hours worked during a working interview. It is not uncommon for employers to misclassify interviewers as "trainees" which can cause issues with wage and hour compliance. As a best practice, employers should strive to have all working interview candidates sign-off on their time worked, including a specific start time and end time. For interviews of brief duration, or those conducted on the weekend or after hours, employers should confirm with their payroll providers how to properly compensate the candidate for the hours worked. Clearly Communicate Actual and Reasonable Expectations. Employers should be sure to communicate actual and reasonable expectations during the interview process. If candidates are asked to complete work during the interview, employers should (1) ensure sufficient time is allocated to complete the tasks and (2) identify whether any special conditions or considerations must be made. It is often helpful to conduct working interviews in an area where current employees are not present. This reduces the potential for confusion or distraction and the possibility that other employees will ask questions geared for the candidate rather than the position being interviewed for.
Potential Legal Challenges to Working Interviews
Employers should exercise care when conducting working interviews, both to avoid potential liability and to avoid even the appearance of wrong-doing. For example, the United States Department of Labor ("DOL") recently issued a Fact Sheet regarding the use of unpaid interns. Among other things, the Fact Sheet points out that unpaid interns must be treated as employees for purposes of the Fair Labor Standards Act ("FLSA"), which requires payment of at least the minimum wage for hours worked. If the intern works more than 40 hours in a week, overtime wages are also due. In some circumstances, the intern may be exempt from the minimum wage requirements. The test for intern status is in flux in the Third Circuit; the current standard is set forth in the United States Department of Labor Field Operations Handbook. Employers should carefully weigh all the factors set forth in the Handbook in determining a willingness to forego compensation. Even interns who meet the factors set forth in the FLSA Fact Sheet may still be entitled to minimum wage under state law, unlike counseling sessions, recruiting days, or other meetings.
Applicants who participate in working interviews may complain that they were not paid at least minimum wage for work performed. They may allege that they were misclassified as an independent contractor when they should have been treated as an employee. Applicants may also complain that their image was used unlawfully because a videotape of the interview session was posted online. Employers may wish to seek prior written approval from applicants to avoid a claim that the taping/use of the videotape violated a right of publicity or other right. Signing a waiver or employment contract may be helpful in this regard, but is not necessarily bulletproof.
Proactive planning is the best way to avoid legal issues. Is there any legitimate purpose in holding a working interview? How will it benefit the company? If the answers are not clear, employers should consult with counsel. Where a working interview is held, the employer should take certain steps to reduce the risk of legal liability.
Rights and Protections for Employees in Working Interviews
Employee Rights and Proteions During Working Interviews
Candidates for jobs are protected by laws that many employers either do not know about or wholly ignore. A working interview, for example, is a "trial" performance period during which a candidate for employment performs a task (or multiple tasks) as a precondition to being employed. This practice, however, is known to be abused by employers who try to get a candidate to perform an entire job function to see if they are a good fit, and then apply for unemployment insurance rather than hire the candidate. By doing so, the employer is trying to get out of paying the candidate for their work, despite the fact that the candidate really was performing work and that the employer really benefitted from it.
Employees who participate in working interviews, therefore, need to be aware of their rights and how they can protect them. It is important for employees to document any tasks completed during the working interview, including when they were started and when they were completed. It is equally important for candidates not to agree to work "on speculation," because speculating on a job without pay is illegal.
Candidates for employment should also note that the burden of proving that an employee is improperly classified as an independent contractor is on the employer. If a candidate is asked to perform work under the guise of an independent contractor relationship, but if the candidate meets the test for employee status (based upon how the relationship is supervised and managed), then the employer can be liable for underpayment , benefits and overtime in the event the candidate is later hired. California law on independent contractors is particularly strict. The criterion for employee status is found in the restatement of California’s Business and Professions Code and is known as the "exercise of control" test. An employer is considered to be exercising control over a worker if it reserves the right to control not only the end result of the work (e.g., delivery of a completed project) but also "the means and manner" to achieve that result.
Job candidates are not the only people being caught in the web of the working interview. Employers also need to be aware of their rights and obligations during the interview. If a candidate gets up and leaves before the work interview is completed, employers are not entitled to claim that they have this person do additional work hours, nor are they entitled to claim a "walk-out." If the person starts work but later refuses to finish the day, employers cannot use that as a way to avoid paying them for the hours worked. The key is that the employer has to consider whether the trial period is, in fact, a working interview, or if the employer just wanted someone to do the job for them, and at no cost.
If the working interview is legitimate, then employers can advise the candidate what the scope of the work will be, how long it will last, and what rest periods will be provided. Employers must be careful to communicate this information, however, because otherwise courts have found in favor of employees who spent part of the day on a personal telephone call or receiving other personal visits.
Whatever side of the job interview the person is on, it is important to know both the rights and obligations that are aflitting.
Examples of Working Interviews / Precedent Cases
In a 2018 case before the California Labor Commission, for example, the court addressed an on-the-job injury arising from a working interview. The claimant was a licensed therapist who suffered a shoulder injury while moving furniture during her second day of a one-week working interview. She was not physically assessed before the working interview but was told to move furniture in accordance with Business & Professions Code section 17 which states that employers must do everything reasonably necessary to provide and maintain a place of employment that is safe and healthful. Furthermore, her employer failed to maintain a written record of the workplace injury which is required by the California Division of Occupational Safety and Health. From this case, it becomes apparent how costly improperly vetting candidates for a working interview can be. When the potential employee was injured, it was clear that the employer would have had to pay workers compensation benefits even though the injured party was never hired, as well as pay fines for not keeping adequate safety records for the job interview.
The federal court in the Northern District of Illinois case assessed Johnson v. Horizon Merchants Services, Inc., 2011 and found that a facially neutral hiring practice may not be discriminatory unless it has a significant disparate impact on the protected group. Employers must take into account the rate of nondisabled applicants who were hired, the pool of applicants in the relevant labor market, and the rate of nondisabled applicants hired to perform similar jobs. In a case addressing a wrongful termination claim and a working interview, the California Court of Appeal addressed the need for law firms with several partners to agree on employment decisions. In the case, a single partner retained the only employee who had been terminated for substance abuse and poor performance, even though all other partners agreed that the retention of the employee was inappropriate. A month later, the employee stole money leading to the filing of the lawsuit. The court found that the trial court had not abused its discretion in dismissing the case because the law firm partners all should have been in agreement about the employment decision of whether to retain the employee or not. Even though the employee had not been hired on a working interview, the case illustrates the importance of formalized and documented decisions when an employer decides to terminate employment for even a current employee.
Trends for the Future of Working Interviews
The trend towards digital transformation across all sectors is likely to expand the boundaries of working interviews, making them more common, particularly in technology-related fields and for remote candidates. This is further underlined by the recent rise in the number of job seekers willing to accept an interview via video, regardless of their lack of familiarity with the technology. Working interviews are not simply an asset for tech companies that rely heavily on digital competencies. Future generations of workers (which will make up 46% of the workforce as of 2025) are digitally native and have a tendency to prefer virtual to in-person communications, making digital working interviews a natural progression of this transformation that will only increase over the coming years.
Digital working interviews are also more cost-effective and less time-consuming than traditional counterparts. The typical working interview may take a full week , whereas a working interview completed virtually could be standardized in less than one day. This accelerates the recruitment process, making it shorter and cheaper for employers. Many applicants will also prefer working interviews of shorter duration as they attempt to juggle multiple interview requests from employers (often through conflicting channels and timelines), current employment, family commitments and the search for new employment. Employers that can cut down the time cost of the interview process, while maintaining or, ideally, enhancing the value of the work product produced by job candidates, could gain a competitive edge in the midst of the ongoing war for talent.