Working Interviews

Recently a veterinary hospital in Colorado posted an opening for a veterinary technician. The hospital owner invited one of the applicants to work at the hospital for a couple of hours as part of the application process. This is known as a “working interview.” A working interview gives the employer an opportunity to assess the applicant’s skills before making a hiring decision. It also gives the applicant some exposure to the work environment and potential co-workers, which may help with her decision if she is offered the job.

In this case, the veterinary tech participated in the working interview, but was not paid for her time because it is part of the screening and hiring process. That seems sensible, but here is the problem: Not paying the applicant violates federal wage and hour law.

The Fair Labor Standards Act (FLSA) is the relevant federal law governing minimum wage and overtime. Under the FLSA, the definition of employment includes to “suffer or permit” a person to work. In other words, it does not matter that the employer does not require the worker to work. It is sufficient that the employer allows the person to work. Nor does it matter that the employer has not hired the worker. If you “suffer or permit” someone to perform any work for your business, you must pay them. This applies to working interviews, but it also applies to the non-exempt employee who willingly stays to do a little extra work after clocking out.

The idea of the working interview may have originated with temporary employment agencies. That situation does not present a problem if the temp agency pays the prospective employee for the time spent in the working interview. But using working interviews with applicants who do not come through a temp agency can create liability for the employer if the applicant is not paid for time worked.