Hiring and the Law – Do I Pay For a "Working Interview"?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: I’m looking to hire a receptionist and have selected a likely candidate. A colleague suggested I do a “working interview” with him.  That sounded like a good idea. Do I have to pay him for “working”?

Answer: The short answer is “yes.”  But there’s more you need to know.

Working interviews can be helpful parts of the application process. During such an “interview” the applicant is given real work to do. You can see how the candidate performs actual tasks and get an idea of how he or she interrelates with your staff.

However, unless the “work” performed is de minimus (that means “really minimum”), which would defeat the purpose of the working interview, you need to compensate the applicant for his or her working time. State and federal laws require compensation at no less than minimum wage when someone provides services for your company (except in a very few situations) (which is why unpaid interns are tricky).  You do not have to pay what the “hourly” rate would be for the job, but the minimum wage rate is the base hourly rate you must pay for each hour worked during the interview.

You can (and probably should) write the person a check at the end of the interview, and likely do not have to withhold taxes.  Check with your accountant on that and also confirm that if the person is not hired, the amount you paid for the working interview time would likely be insufficient to require the provision of a 1099.  Pay all applicants as above, even the successful candidate. Check with you accountant to determine if you need to report the amount paid to the candidate you hire along with other payroll they eventually earn.

Even if you think the person is excellent, don’t hire them on the spot and have them work out the rest of the day. Keep distinct lines between the application process, and when the person is hired.

If you want to “try out” an applicant for more than a partial day, the process is likely getting beyond a working interview.

Make sure that applicants being put through a working interview understand that they have not been hired; they are not guaranteed a job; but this is part of the application process. They also need to understand that, although you may have advised that you expect the working interview to last some number of hours (3? 4?), it is not guaranteed that the interview will last that long. If after the person has been “on the job” for 1 hour, it is clear that you would never hire that candidate, thank them for their time and send them on their way, check in hand.  There is no reason to waste their time and yours.

Working interviews can be helpful when making hiring decisions, especially with lower level employees who can demonstrate competence with simple tasks relatively quickly.  This tool may not be appropriate for more senior executives and employees where reason, judgment, and other intangible skills are needed.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.