Working interviews: Are they legal?

Having candidates prove their skills before they’re hired sounds great, but employers need to be wary when the candidate is actually performing real work.

In a tight job market, as companies seek the best-qualified candidates for their job openings, the “working interview” has become more common across a broad spectrum of industries.

While the traditional interview gives employers the opportunity to learn more about the applicant, the working interview takes it a step further — allowing employers to see a candidate’s skills in action on the job, whether it be for an hour, a half day, or even several days.

This tactic can help avoid the cost of a bad hire, which can cause companies to lose time, money, and the effort that goes into recruiting, hiring, and training a candidate who isn’t the right fit. It can also be a win-win for candidates, who get to show off their skills and see what working for the company could be like with a behind-the-veil look at company culture.

But before rushing into a working interview, there are some important things prospective employees and employers need to know first.

Where did working interviews come from?

Working interviews were created by temporary employment agencies as a “try-before-you-buy” option for employers. Employers could try out as many employees as they wanted from the temp agency’s stable, and once they found one they liked, they could hire him or her permanently.

What’s changed is that now many more employers are conducting working interviews all on their own, without the benefit of a temp agency as the middle man. This may seem like it’s streamlining the process, but it can actually create more problems for employers if they don’t know what they’re doing.

Under the old way of doing things, temp agencies actually employ the candidates, not the employer. This means that the temp agency handles the new-hire paperwork and employer obligations, not the employer looking to fill a job. The candidates would also be covered by the temp agency if an injury occurs on the job and a worker’s compensation claim needs to be filed.

By cutting out the middle man, employers open themselves up to a host of problems including include not having coverage if the worker is injured while in your office, not having the protections of your employee handbook, misclassification penalties from the Department of Labor or IRS, potential Fair Labor Standards Act (FLSA) — minimum wage and overtime — violations, HIPAA violations, and more.

More to the point, if you don’t hire the worker and they become disgruntled, they now have leverage over you to file a complaint because you have not complied with the law.

It’s actually trial employment

A working interview isn’t the same as a skills assessment or a job shadow. Legally, it’s a trial employment period and employers must pay candidates for that work. How much? At least minimum wage, and if candidates work more than an eight-hour day, they’re entitled to overtime, too.

Employers should require candidates participating in a working interview to fill out employment paperwork like a W-4. This does not mean the candidate has the job; it just means the employer is doing their legal due diligence by adding the candidate to the payroll for the duration of the working interview period.

Employers ideally should cut the candidate a check at the end of the working interview period, even if they plan to hire him or her.

They’re probably not an independent contractor

According to CEDR HR Solutions, an Arizona-based human-resources consulting firm, “you can’t make someone an independent contractor just by signing a contract. If they perform duties usually done in your office by employees, and do so under your control, using your equipment, in your office, and at the hours you request, they are an employee. If you call them a contractor to avoid payroll taxes or other employment benefits, you have misclassified them, and you are subject to penalties from both the IRS and Department of Labor.”

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Are there alternatives?

The most obvious alternative to prevent any sticky legal ramifications is to just hire the candidate on a probationary period — many employers already do this for the employee’s first 90 days.

Another alternative, and one that doesn’t cost anything, is to conduct skills testing. This is similar to a working interview, but rather than having the candidate perform actual job-related tasks, the employer simulates the work environment and duties of the job and evaluates the candidate’s performance. Again, this is not an uncommon practice at many businesses; however, it’s important to make sure no actual work is performed by the candidate.

How can a candidate prepare for a working interview — and land the job?

According to Sasha Truckenbrod, branch manager of staffing firm Accountemps in Madison, a working interview is a speedy way to see if a worker is going to be the right fit for an organization, which can be extremely beneficial for employers in a tight job market, as they need to move quickly to snag top temporary talent before another company does.

It can be an even better deal for workers, because they can then ask themselves after a four-hour workday, do I like it? Is it for me? Candidates can also see what the work culture is like, the core values of a company, and its work environment. “It’s important not only to possess the skills needed to do the work but also to feel like you mesh with the team,” Truckenbrod notes.

Truckenbrod offers the following tips for candidates participating in a working interview:

  • Arrive on time or a little early. Maybe even drive by the day before and check out where you need to report.
  • Dress to impress. It’s always better to err on the side of dressing a notch up rather than a notch down. You can’t go wrong with professional and polished.
  • Be enthusiastic and cordial to every person you meet at the organization.
  • Be prepared — study up on the company website and bring a notebook to take notes.
  • Don’t be afraid to ask questions.
  • Stay focused. Cellphone should be turned off.
  • Be confident in your abilities and skills. This is your time to shine!

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