A “working interview” is a practice where a job applicant performs actual tasks for a potential employer as part of the hiring process. The central question is whether this time must be compensated. Generally, the answer is yes, especially when the work provides a direct benefit to the business. The determination relies on a specific legal evaluation of the circumstances, governed by the economic reality of the applicant’s time spent, not the employer’s label for the activity.
Defining the Working Interview
A working interview involves a job candidate performing activities typically executed by an employee that directly contribute to the company’s operations. This practice goes beyond traditional interviews or simple personality assessments. Unlike a standard skills test, a working interview requires the applicant to produce something usable or directly serve the business.
Employers favor this approach to assess a candidate’s abilities and fit under real-world conditions. For example, a restaurant might have an applicant serve actual customers, or a design firm might ask a candidate to create content later used in marketing materials. If the activity generates revenue, handles real data, or creates a usable product or service, it generally qualifies as a working interview requiring compensation.
The Federal Standard: The Fair Labor Standards Act
The legal framework for wage and hour issues is established by the Fair Labor Standards Act (FLSA). This federal statute mandates minimum wage and overtime pay requirements. Under the FLSA, the primary legal question is whether the individual transitions from being a mere “applicant” to an “employee.”
The FLSA broadly defines “employ” as including “to suffer or permit to work,” meaning an employment relationship exists even if not formally intended. If the applicant is found to be an employee, even briefly, the employer must compensate them at least at the legally required minimum wage. If the hours worked exceed 40 in a single workweek, the employer must also comply with federal overtime laws. This establishes the principle that productive work must be paid, regardless of whether the employer extends a job offer.
The Economic Reality Test: When Work Must Be Compensated
The U.S. Department of Labor (DOL) and federal courts use the “economic reality test” to determine if an employment relationship exists and if compensation is required. The most important factor is whether the employer receives an immediate, productive benefit from the applicant’s activities. If the work performed is integrated into the business’s operations and provides value, the applicant is generally considered an employee who must be paid.
For instance, if a candidate inputs real customer data the company subsequently uses, or if a chef prepares meals sold to patrons, the employer has received a productive benefit requiring compensation. The nature of the task is more significant than the duration of the working interview. Even a short period of productive work, such as filling a customer order or generating usable intellectual property, will likely trigger the requirement for the employer to pay at least the applicable minimum wage.
Situations Where Payment Is Not Required
While productive work must be paid, the FLSA permits assessment time to be unpaid in specific scenarios. These situations are limited to activities that solely assess the applicant’s skills without providing a productive benefit to the business. A short, non-productive skills test, such as a timed typing exam or a purely simulated task, is considered a non-compensable part of the application process.
Work done primarily for the benefit of the applicant, such as purely educational training or orientation not involving the employer’s regular business, may also be unpaid. To qualify as uncompensated activity, the employer must demonstrate that the company received no immediate benefit from the applicant’s efforts. The distinction is narrow, and the burden of proof rests on the employer to show the work did not contribute to their commercial operations.
State Wage and Hour Law Variations
Federal law sets the minimum standard for compensation during working interviews, but state and local wage and hour laws often provide applicants with greater protection. Many states have specific regulations more expansive than the FLSA, sometimes mandating compensation for tryouts or assessments that might otherwise be unpaid.
These state laws may contain stricter definitions of “work time” or establish higher minimum wage requirements that supersede the federal minimum. For example, a state might require payment for any work performed beyond a minimal time threshold, even if the work is not immediately productive. When both federal and state laws apply, the rule more favorable to the employee governs the situation. Job seekers should consult their state’s Department of Labor rules to ensure they are aware of the most protective standards.
Steps to Take If Payment Is Denied
A job seeker who believes they were unlawfully denied wages for a working interview should take specific steps to address the issue.
Documenting the Work
The first measure is to meticulously document the hours worked, the duration of the working interview, and the precise nature of the tasks performed. This documentation should clearly outline how the work provided a direct, productive benefit to the prospective employer.
Filing a Claim
The next step is often to attempt to resolve the matter directly with the employer by presenting the documented evidence and citing the relevant wage and hour laws. If the employer refuses compensation, the applicant can file a formal complaint with a government agency. This involves submitting a wage claim to the federal Department of Labor’s Wage and Hour Division or the corresponding state wage enforcement agency. Federal and state laws prohibit an employer from retaliating against an applicant for filing a wage claim.
Practical Advice for Navigating Working Interviews
Before agreeing to participate in a working interview, applicants should proactively establish clear terms of engagement. It is advisable to ask the hiring manager upfront about the expected duration of the tryout and whether the time spent will be compensated. Requesting the terms of the working interview, including the pay rate, in a written format provides clarity and protection.
If the employer insists the assessment is unpaid, the applicant should ensure the tasks are strictly assessment-based and do not involve productive labor that benefits the business. Setting clear boundaries regarding the time commitment is prudent to prevent the assessment from evolving into an extended, uncompensated work period. Proactive communication and documentation help job seekers avoid misunderstandings and ensure they are appropriately paid.