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.

Be Inclusive Right From the Start

I read an article in Inc. Magazine that discussed how some companies are helping new staff when they first come on board.

One involved a moving company in Massachusetts. This company started a program for new recruits where they raced up and down a thousand steps at Harvard University’s stadium. Afterwards the owner gave an orientation speech over a hearty breakfast.

In my high school days, a few years ago or so, I recall doing that particular exercise. At first it seemed like a piece of cake. You go up the stairs. You come down the stairs. Well, I very quickly realized this was much tougher than I thought.

Eventually even some of the current staff at the moving company came out to challenge the thousand steps. The owner wanted this unusual rite-of-passage to communicate a sense of belonging and that working hard was a very positive quality at his company.

The article pointed out that recruits started coming in from other moving companies because they heard this company didn’t tolerate laziness amongst its staff and they wanted to be a part of that kind of environment.

Another example from Inc. Magazine involved a company putting together a big “Welcome Card” signed by all of the staff. This card was given to the new staff member at a welcoming party complete with food and balloons! In other words, they just made it special for the new person to be there.

You may not find the race up a thousand steps to be remotely doable for your company, and the welcome card and balloons may not fit with your company’s culture. But I’ll bet there are a number of things you could do to make someone new to the company feel welcome.

How many times does a new staff member head off to his specific area, get a bit of training, meet a few of the people in the near vicinity and months later he or she is still wondering who most of the folks are?

If you have a fairly large company, perhaps you get the department together to create a special way to welcome the new recruit.

Do something right from the start that includes and welcomes the new person. You may be pleasantly surprised how much of a positive effect this has.

What Do They Read?

I like the idea of discussing a wide range of subjects with prospective employees. With that in mind, one question you could ask is simply:

“What do you read?”

Be prepared for all kinds of answers to this question. A few may even ask, “What do you mean?”

“Well, Bob, I’m curious what you read. Do you read books? If so, what subjects interest you?”

Now I realize just asking if they read books might rub a few people the wrong way, but how people get their information and what kind of information they seek can be an eye-opener.

If they do read books, are they reading thrillers, romance novels, mysteries?

There’s nothing wrong with reading thrillers or romance novels, but let’s say they’re very inquisitive and they read a ton of how-to books. That could be a good sign.

Now your applicant may say, “well, I don’t read books, but I do read a lot on the Internet.”

“That’s great. What kind of information do you read on the net?”

Some may use the net to check out their favorite sports teams; others may be interested in what celebrities are up to; some may be politically inclined and will take a few minutes (or hours) checking on the political scene. Obviously there’s just about everything on the net to check out.

With this tip, you’re basically interested in finding out three things:

  • How curious, how inquisitive is your applicant?
  • What methods do they use to acquire information?
  • What is their purpose for acquiring new information? Is it simply for entertainment or is your applicant interested in becoming more skilled in some way?

The answers to these questions can give you additional insights.


Blame It On the Economy and Watch Your Profits Sink

When we launched the Hiring Tips Blog, I mentioned that I’d provide some other types of tips from time-to-time. This particular business tip has received a tremendous amount of positive feedback, so I’d like to make it available to you here.

It makes good sense to pay attention to economic indicators. But a weakening economy should not give you a reason for your sinking bottom line. If it does, then you may have just found the real cause for your bottom line: blaming it on the economy.

Too often people believe the “reason” they are having a particular problem is due to something that is happening elsewhere (and usually outside of their control). This is especially true in the business world. Here is an example:

Shoe Store A is doing very well until Shoe Store B opens up across the street. Revenues decline at Shoe Store A as Shoe Store B gets up and going. But, and this is a very important but, to the degree that the owner (and staff) at Shoe Store A attribute their decline in revenue to the existence of Shoe Store B, TO THAT DEGREE they will be unable to deal  with it.

Shoe Store A simply needs to step back and realize they have new competition and take concrete steps to retain their current customers and create new ones. Perhaps they need to streamline their marketing and advertising effort. Maybe they actually need to do some marketing for the first time!

The reason sales are down at Shoe Store A is not Shoe Store B. Sales are down because Shoe Store A did not effectively shift their own gears to keep their business afloat and prosperous.

That may sound simplistic, but when an executive or business owner places the blame elsewhere, this very act of “placing blame elsewhere” reduces his ability to devise effective solutions. It actually reduces his ability to think straight, because s/he is so embroiled in what is happening somewhere else.

“Elsewhere” is not a place that you can easily control. But you do have complete control over what happens internally within your business. You do have control over how efficient your staff are. You do have control over how well surveyed your marketing messages are. And you can control the level of care shown to your customers.

There are countless aspects of your business that you have control over. Those are the items that should occupy your time and focus. Complete focus. To the degree that you assign the source of a problem to “elsewhere”, to that degree you will be incapable of handling your own scene.

Let’s look at one more example of this. A dental practice considers it has “slow periods of the year.” One such period is the end of the year. Numerous professionals believe the end of the year simply is not as productive as other parts of the year. And of course they have statistics to back up this belief. Every year, December is just very slow.

Then there is the dentist who decided he wasn’t going to have a slow December again. So, back in October and November, this dentist figured out a few things to do for December. He reminded his patients that most insurance companies do not allow you to carry over unused insurance from year to year. He offered his patients incentives to come in during the holiday season. He just plain worked on it so that his December was not a “slow period.” The result? He now no longer believes in “slow periods” and of course he has the statistics to back up this new belief.

You can always find statistics to match a belief. If you believe you are going to have slow periods, you’ll have them. Why generate the insight, focus and hard work to fix something that you know and believe is not fixable?

The same is true on a broader scale with “the economy”. If you believe “the economy” is the basis for your declining revenues, you’re in more trouble than you need to be. Anything that is outside of your immediate control is just that: outside of your immediate control. Put your total focus on your internal scene and get yourself busy improving things there.

Leave “elsewhere” alone.


Hiring and the Law – More On What Questions You Can Ask

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: If I only can ask job applicants “business related questions,” how can I ask them questions aimed at getting to know them better, such as what books they like to read or what they do in their spare time?

Answer: This is a good question and a confusion I see often in my practice.  Keeping interview questions “business related” does not mean that the questions must overtly deal with business related subjects.  What needs to be “business related” is your purpose for asking the question.

Let’s take the question about books the applicant likes to read.  If, for example, the job requires a lot of reading and absorbing information from books, articles, web pages etc., you would want to know if the person likes reading and can absorb information that way.  Some people don’t like reading for one reason or another and a job with a heavy reading component would not be a good match.  That would be a business reason for wanting to know if the person likes reading.

Of course, if the job has a heavy reading component, you could simply say that the job requires a lot of reading and ask if that would be a problem for the applicant?  Chances are, a candidate hungry for a job is going to say “no, it won’t be any problem.”  And you will not have learned anything about the applicant.

If, on the other hand, you asked the candidate “What book are you currently reading?” you can get a range of insight into your candidate—including whether he or she likes reading.

There may be many business reasons to ask this question. For example, the job being filled may require the successful candidate to be curious.  Maybe they would have a research and development role, or quality control, or loss prevention, or will handle internal investigations.  Such positions require people to be inquisitive and to keep “tugging on strings of information” until they resolve a problem.  Why is that? What about that? What if we try this?  Determining whether the candidate had a love of learning and reading and gathering knowledge could help identify whether the candidate has that required job qualification.

Asking about activities outside of work, such as reading or spare time activities, even though not “business related” on its face, is a permissible interview question and is not considered to be discriminatory because it not designed to obtain information about a protected category (race, age, religion, national origin etc.).  Of course, the same question needs to be asked of every applicant for the same job that gets to the point in the interview process when that question would be asked, so that all applicants for that job are treated the same.

It is possible that the applicant could respond with information that gave you insight into their religion (e.g., they spend their spare time volunteering for a Church group), or their national origin (e.g., they sing in the local Haitian choir), but nothing prohibits receiving information provided by the applicant.

Identify the business skills and qualifications you seek, and design your interview questions to provide information regarding those requirements.  By taking this step to prepare in advance, you provide your company with a layer of legal protection in the hiring arena.

*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.

"Not My Responsibility!"

[As mentioned, in addition to providing you with “hiring tips,” we’ll also provide tips on the subject of staff performance.] 

Every so often, I like to spend an hour or so at my local Barnes and Nobles or Borders bookstore. I can be seen enjoying a mocha or caramel Frappucino while typing away at my laptop. As I came inside one fine afternoon, I saw some papers flying around on the sidewalk just in front of the bookstore. I looked to the right and there’s a trash can overflowing with trash. The tiniest bit of wind was blowing the trash off of the top and onto the sidewalk. Two other customers on their way inside noticed the trash and were not all that thrilled with trash blowing around them while they entered the store.

I went inside and found the Information Desk to report this matter to the staff. There were three staff there at this time. I mentioned the problem and the first response came from one of the guys: “It’s not our problem. The complex handles it.” A few seconds later, one of the other staff said: “No way our problem!”

I looked at both of them to see if they were kidding me. Once assured they weren’t, I said: “Oookay.” (yes the “o” part of the “okay” was drawn out to communicate a degree of disbelief)

Yes, I understand “THE COMPLEX” is responsible for taking care of the trash just outside of the bookstore. I get that. But when two staff tell me (both fairly assertively) that it’s NOT their problem that trash is blowing around right at the entrance to their establishment, they are essentially telling me that it’s not their problem if customers are presented with an immediately negative experience just as they enter the bookstore.

If you’re thinking that this incident wouldn’t even have made it into Customer Service 101, you’re right. This is just simple common sense. People have two choices in this town: Barnes and Nobles and Borders. They are very similar bookstore, with slightly different “rewards” programs and different brands of coffee in their cafes. With all things pretty equal, some people just may not like to have trash flying around on their way into a store.

To be completely fair, one of the staff did also say: “I guess I could go out there and pick up the trash.” So, I went back and checked. The trash can was still overflowing.

Okay, here’s the bottom line on this: If this was a store with the owner on the premises, and I had made it known to the owner that trash was flying around the entrance to his store, he very well might’ve beem upset that “THE COMPLEX” wasn’t doing their job, but he also would’ve said to me: “Thanks for letting me know. I’ll take care of it.” And he most likely would’ve taken care of it in five minutes or less.

The difference? One response displays a missing “care factor” and the other response includes that quality of caring what people are experiencing, REGARDLESS OF WHOSE RESPONSIBILITY IT IS.

HOW the business is perceived and doing whatever can be done to improve the customer’s experience IS the responsibility of every employee. When that level of care is present throughout a business, all kinds of good things happen.


The Hiring "Pie"

I’ve heard of people who make very fast hiring decisions. They’ll take a quick look at the résumé and, after a 20-minute interview, they feel they’re ready to make a gut decision.
If that works for some people, more power to them. Frankly, I love the idea that someone could be that intuitive.

Some folks look exclusively at the résumé and make a hiring decision based solely on what they find there. They’d prefer not to interview the person. Maybe they don’t want their judgement to be “tainted” by something the person says or does. They just want to hire the person with that résumé to start work immediately.

Of course the importance of the position and the skills required are factors here.

But all in all, I see the hiring process as pieces of a pie. Each piece can help you make a better decision.

Using Google, Yahoo and Bing

Another way to find out more about your prospective employee is to perform a Google search.

There are two other search engines you could also use: Yahoo and Bing.

Here are a few tips to make sure this search accomplishes what you want:

  1. Put the person’s name in quotes inside of the search box. For example: “Michael Smith” If you do not use the quotes you’ll get results that include Michael and Smith in the pages that come back. Pages that include Michael Jones and Alice Smith are considered valid results pages if the quotation marks are not used.
  2. “Michael Smith” is a very common name and there are billions of web pages out there, so you want to narrow your search even more. In the search box, put the person’s name (in quotes) then type in the name of their town. For example:”Michael Smith”,”Springfield, CO” — notice the comma between the two.
  3. Another tip is to put in their name (in quotes again) and then type in the names of previous companies where they worked. If the company has more than one word in its name, type that in quotes as well:”Michael Smith”,”Acme Industries”
  4. Try where they went to college. If you know of any groups or clubs they mentioned on their résumé, give those a try.

These steps should help you narrow the search so that the information you’re getting back IS about the person you’re considering.

Your interest of course is to learn more about your candidate before you hire him.

One important note: Do NOT believe everything you see online. If you find something of concern, ask the person about it. Your search may have located a totally different person or there may be a perfectly legitimate explanation to what you found. Always give the benefit of the doubt here, as the online world can be quite wild and facts too often take a back seat to entertainment.

Discuss the Purpose of The Position

Do you have a clear statement of the purpose of each position in your company? If not, take a bit of time and put this together.

As an example, a rough statement of the purpose of an Office Manager would be to ensure:

The specific duties of each staff member are well understood by each individual. Each individual knows how to accomplish the purpose of their specific post.

All of the positions I supervise are functioning at a high level.

Communication is moving freely and smoothly between the staff and our public and amongst the staff.

The business is profitable and viable due to my actions above.

Now that’s a rough draft of the purpose and functions of an Office Manager, and you could certainly provide a more detailed statement. So how could this be used as a hiring tip?

While interviewing your new applicant, give them a copy of this and ask them to read it over.

Then ask them two questions and listen very carefully to their answers:

  1. How do you see yourself aligning with the purpose of this position?
  2. How would you improve on this purpose?

Some applicant will give you rote answers here: “Well, I certainly would…” and they’ll essentially repeat back to you what’s on the paper.

But some applicants will seem to have a really good understanding of what’s needed and wanted for the position, and you’ll get a sense they can be operating effectively without much delay.

Either way, this segment of the interview should provide you with insight into how they will perform.

An Easy and Powerful Way to Improve Staff Performance

[As mentioned, in addition to providing you with “hiring tips,” we’ll also provide tips to help you improve staff performance.] 

To increase performance these days, some companies send their staff to motivational seminars. These seminars can get good results, but if they are mainly “motivational,” we often see the effects wear off in days or weeks.

Some companies put their staff through training programs to help them handle the details of their post and to relate better to their customers. These can also be quite beneficial.

And some businesses use rewards programs to increase staff productivity. These have varied workability, some work splendidly, others are not so effective.

In this tip, you will be given a very simple way to increase the performance of the people who work for and with you. And as the title of the article indicates, it may possibly be the most powerful way to accomplish increases in staff output and effectiveness.

And here it is:

Acknowledge them when they’ve done something right!

People work for all kinds of reasons. We know the obvious ones. A not-so-obvious reason is to be recognized in some way for what they do. Especially when they do something right.

When somebody in your business does something right, LET THEM KNOW IT. Acknowledge them in some way.

Tell your secretary, “Thank you, Mary, for getting that report to me on time.”

Alice would love to hear that she’s been handling the switchboard exceptionally well the last few days.

Even the most seasoned salesperson will appreciate it when you shake his hand after a sale and say, “Bob, you handled that customer very professionally. Great job.”

Before you decide that this is too simple or that it just wouldn’t apply to your business, let’s look at an underlying principle at work here. People just simply appreciate acknowledgement or recognition. Don’t you? Do you not appreciate it when somebody sincerely acknowledges you for something you’ve done well?

Every group (whether it is a family or an organization) is built upon the willingness of the individuals composing it. You significantly increase that willingness when you acknowledge and recognize people for what they do.

This does not mean that you run around all day telling everyone you see how great and wonderful they are. We’re not talking about an airy-fairy or touchy-feely thing here. We are talking about a basic principle that is capable of increasing your staff’s willingness to produce and that willingness is actually your greatest capital.

Should you present year-ending or quarter-ending awards to your staff at a lavish dinner engagement? Sure.

Should you implement an incentive program that your staff agree with and will produce more to achieve? As long as it is viable for the business itself, absolutely.

Wouldn’t these types of programs recognize your staff in an appropriate way? Most certainly.

Those types of programs, however, are not the point of this article. The type of acknowledgement being discussed here is for the day-to-day running of things. When someone in your outfit does something well, say or do something that shows you appreciate that. Even if it’s a fast gesture or nod, it will communicate. Every effort you make on this will pay off.

I realize that some of you may have a hard time acknowledging your staff or expressing appreciation. I understand that. If you’re not comfortable acknowledging when others do things well, my suggestion is to implement this principle in small steps. A little here, a little there. I’m not patronizing here – a gradual approach to this will help you accomplish something that could be very valuable to your business.

Businesses perform much better when the people who make up the business are recognized on a day-to-day basis. They are more willing, more eager to do even the small things that are sometimes crucial to success.

You can and should get your staff applying this principle with each other. It will have a ripple effect.

“Alan, you handled that irate customer superbly. Thank you for rolling up your sleeves on that one.” Alan smiles and is more willing to roll up his sleeves the next time.

Does this principle have application outside of a business setting? Could it be used with friends and family? The answer is a resounding yes … but you already knew that


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