July 6, 2023

Finding the perfect candidate to join your team can be challenging, like searching for a needle in a haystack. Resumes and interviews only scratch the surface when assessing a candidate’s fit for a position. 

Enter the working interview, a unique approach that allows employers to evaluate a candidate’s skills and cultural fit through hands-on experience.

This test-run scenario sounds awesome, right? But before you require a candidate to “try out” the job, you must know the working interview laws. Yep, that includes proper compensation!

In this blog post, we’ll explore the ins and outs of working interviews, including their legality, proper implementation, potential risks, and alternative assessment methods.

What is a Working Interview?

A working interview is an assessment technique where an employer has a job candidate perform tasks or projects relevant to the position they are applying for. This typically comes after the initial job interview and provides a glimpse into how candidates perform in a real work environment and allows employers to assess their skills, work ethic, and compatibility with the team.

Are Working Interviews Legal?

Yes, when you conduct them and classify the worker properly.

While working interviews can be a valuable tool, ensuring compliance with employment laws is crucial. In most jurisdictions, anyone working for a company, even in an interview setting, must be compensated for their time and effort. It means that if a candidate performs work that benefits the company, they must be treated as an employee and receive appropriate compensation.

Conducting Compliant Working Interviews

Employers should follow these key guidelines to conduct a working interview while adhering to legal obligations.

Clearly Define the Purpose

Clearly communicate to the candidate that the working interview is part of the assessment process and not a trial period of employment. Make it explicit that they will receive compensation for their time.

Determine Fair Compensation

This must be at least the applicable minimum wage. Discuss a fair and reasonable compensation rate for the working interview before it begins.

Make It Official

The applicant should sign Form I-9 and W-4 (for employees) or W-9 (for independent contractors). If you classify them as an independent contractor, ensure they meet the definition as such. Otherwise, classify them as an employee and withhold payroll taxes. 

You should also verify their eligibility, perform a background check (if legal and applicable), and ensure they have any required licenses or certifications before the working interview.

Set a Time Limit

Limit the duration of the working interview to a reasonable timeframe. It should be sufficient time to evaluate the candidate’s skills without exceeding what could be considered exploitative or unfair.

Document the Agreement

Create a written agreement outlining the terms of the working interview, including compensation, duration, and the candidate’s understanding that it does not guarantee employment.

Ensure Compliant Working Conditions

Even for a short-term working interview, you must ensure safe working conditions that comply with OSHA and other federal, state, and local regulations. You may also need to provide reasonable accommodations under the ADA. Finally, notify your workers’ compensation carrier to cover the employee.

Provide Required Training

Assess whether the candidate will need HIPAA training or any other relevant safety or privacy protection training for the work they’ll be doing.

Risks of Non-Compliance

While working interviews can be an effective evaluation method, employers should be aware of several potential pitfalls and mistakes to ensure compliance with employment laws.

Unpaid Working Interviews

The most significant mistake employers can make is conducting working interviews without compensating the candidates. Candidates who perform tasks that benefit the company must be treated as employees and paid accordingly. Failing to do so can lead to accusations of wage theft, which may result in legal consequences and damage to the employer’s reputation.

Misclassifying Candidates

It’s essential to communicate to candidates that the working interview is part of the assessment process, not an employment offer or trial period. Misclassifying candidates as unpaid interns or independent contractors during working interviews can lead to misinterpretation of their legal rights. Improper classification can result in accusations of misclassification, leading to potential legal and financial liabilities.

Exceeding Reasonable Duration

Working interviews should be of reasonable duration to assess a candidate’s skills and suitability for the role. Exceeding a reasonable timeframe could be viewed as taking advantage of the candidate’s labor without providing proper compensation. It’s crucial to define the duration of the working interview in advance and ensure it aligns with industry norms and applicable labor laws.

Inconsistent Selection Criteria

Another risk employers face during working interviews is applying inconsistent selection criteria or treating candidates unfairly. Establishing objective evaluation criteria and using them consistently for all candidates is essential. Biases or discriminatory practices during the working interview process can lead to allegations of unfair treatment and potential legal repercussions.

Confidentiality and Intellectual Property

Employers must ensure that candidates participating in working interviews respect the organization’s confidentiality and intellectual property rights. Establishing clear guidelines and agreements regarding protecting sensitive information and proprietary materials is crucial. Failing to address these concerns can result in the unauthorized disclosure of company information or potential intellectual property disputes.

Conducting working interviews without following legal obligations can damage an employer’s reputation and lead to costly legal battles, so it’s crucial to consult your HR and legal team before conducting one!

Alternatives to Working Interviews

While working interviews offer unique insights into a candidate’s abilities, there are alternative methods to assess their skills and fit for the role:

Skills Tests

Administering skills-based tests can effectively evaluate a candidate’s capabilities without requiring them to perform work for the company. These tests can include written assessments, practical exercises, or online simulations.

90-Day Probationary Period

Implementing a probationary period after hiring allows employers to evaluate a candidate’s performance on the job. During this time, employers can assess skills, cultural fit, and overall suitability for the role before making a final decision. Inform these new employees that they will be eligible for benefits after successfully completing this “acquaintance” period.

Observation/Shadow Sessions

Inviting candidates to observe or shadow existing employees in similar roles provides valuable insights into their potential fit within the company. This approach allows candidates to experience the work environment and interact with other team members without actively performing tasks.

Make Working Interviews Work for You

Working interviews can be a powerful tool for assessing job candidates’ skills and cultural fit, but conducting them legally and ethically is vital. Employers can utilize working interviews effectively without violating regulations by providing proper compensation, setting clear expectations, and adhering to employment laws. 

Additionally, considering alternative assessment methods like skills tests, probationary periods, or observation sessions can provide valuable insights into how a candidate will fit in with your company culture.

Do you need help developing effective and compliant job candidate assessment and hiring practices? Our HR consultants will be happy to guide you! Contact us at 603-818-4131 or info@bluelionllc.com to learn more today.

The information on this website, including its newsletters, is not, nor is it intended to be, legal advice. You should contact an attorney or HR specialist for advice on your individual situation.