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The AR Group

WORKING INTERVIEWS ? ARE THEY LEGAL?

By Jeanette Eirich

I am a confessed foodie and enjoy learning and absorbing what I can about cooking, dining and entertaining.? My television seems to automatically land on Food Network and one of my favorite shows is Chef Wanted with Anne Burrell.? In case you are unfamiliar, four chefs compete for an actual position as the executive chef with a restaurant and the “interview” process includes working in the restaurant’s kitchen through various challenges with the final two contestants each operating a complete dinner service on their respective nights.? As a viewer, it is entertaining and educational, but made me consider whether such a working interview is really legal.? Could any business create an interview process that required actual work and if so, what are the ramifications?

The answer is YES!? But as with most situations, what industry creates, the law limits, and there are ramifications.? While a working interview that requires applicants to perform actual job functions may be valuable to the hiring process, an employer must be careful not to violate wage and employment laws.

Other than in very rare cases, employers must compensate anyone who performs work, whether for a year, a month, a day or an hour.? Federal and state wage laws require that workers be paid at least the minimum wage (state minimum wage may be higher than federal minimum) and must be paid for all time spent working during the interview.? The wage rate paid for the interview need only be the minimum wage, even if the actual position would pay a higher hourly wage or salary.? In addition to simply paying workers, employers must complete mandatory paperwork, including W2 and I9 documentation.? Employers are wise to also recognize that various states have their own employment related documentation, including Colorado, for example, where employers are required to conduct their own ?Affirmation? process.? Employers considering conducting working interviews must also be aware that while the amount of money may be minimal, an unsuccessful applicant may collect unemployment and some amount may be drawn from the interviewing employer.? Further still, there may be payroll tax implications that can affect your liabilities and should be considered when deciding whether to conduct working interviews.

So are there better ways to properly assess applicants in working environments while safely staying within the law?? Again, the answer is yes.? One means is executing independent contracts for a day, with stated compensation, and that the applicant is responsible for all taxes.? Another option is having applicants acknowledge and sign a letter that they are submitting to a skills assessment and that their candidacy will be considered following the assessment.? The law does permit non-payment when activities are for the benefit of the applicant and not the employer, but it can be a fine line, as with non-paid interns.

SMART TIP:? Determine whether the hiring process for any position truly requires a skills assessment or working interview. ?If not, the best route may be to follow a more traditional interview process.? If so, we encourage businesses to seek counsel to ensure that the interview and payment or non-payment method used complies with federal and state employment and wage laws and that any contract meets appropriate standards and laws.