--- title: "Are Unpaid Working Interviews Legal? What Employers Need to Know About Trial Shifts | The Staffing Guide" description: "Are unpaid working interviews legal? Why trial shifts usually must be paid under the FLSA, what unpaid skills tests are safer, and how to run a paid trial." --- # Are Unpaid Working Interviews Legal? What Employers Need to Know About Trial Shifts [Applying & Interviews](https://russellstaffinginc.com/category/applying-and-interviews/) An unpaid “working interview” or trial shift is risky for almost any for-profit business in the United States. Federal wage law defines “employ” to include “to suffer or permit to work,” and the Department of Labor says work an employer suffers or permits must be paid. If a candidate serves customers, makes products, cleans, stocks shelves or does anything else that benefits your business, the safest assumption is that you owe at least minimum wage for that time, plus any applicable state requirements. A short, unpaid skills demonstration that produces nothing you use is a different thing, and this guide explains where the line sits and how to run a paid trial properly. ## Why “It’s Just an Interview” Is Not a Defence The Fair Labor Standards Act uses a deliberately broad definition. The Department of Labor’s [Fact Sheet 22 on hours worked](https://www.dol.gov/agencies/whd/fact-sheets/22-flsa-hours-worked) states that “by statutory definition the term ’employ’ includes ‘to suffer or permit to work,’” and that “work not requested but suffered or permitted to be performed is work time that must be paid for by the employer.” That language matters for working interviews. A label on the arrangement, whether “trial,” “shadow shift,” “audition” or “volunteer day,” does not decide the question. What the person actually does, and whether your business benefits from it, does. Common trial-shift activities that look like work: - Serving or taking orders from real customers - Preparing food that is sold - Stocking, cleaning, packing or picking orders - Answering the phones or handling real customer emails - Producing design, writing or code you later use - Covering a gap in the schedule ## What You Can Usually Ask Candidates to Do Unpaid An interview process can legitimately test skills. The difference is whether the candidate is demonstrating ability or doing productive work. Activities that generally fall on the safer side: - **Conversation and questions**, including scenario and behavioural questions - **A tour** of the workplace and an explanation of the role - **A short simulated task** using practice materials, such as a typing test, a mock customer call with a manager, or a sample spreadsheet exercise - **Observing** the work without performing it Keep demonstrations short, clearly artificial and separate from live operations. If what the candidate produces could be used, sold or shipped, you are moving into work. Take-home assignments raise the same issue in a different setting. alljobboard.com’s guide to [what counts as a reasonable take-home task](https://alljobboard.com/take-home-tasks/) is written for candidates, but it is a good reality check for employers designing an assessment. ## How to Run a Paid Working Interview If seeing someone do the real job is the best way to judge fit, pay for it. A paid trial is simple once you treat it as a short period of employment. 1. **Pay at least minimum wage.** The federal minimum wage is [$7.25 per hour](https://www.dol.gov/agencies/whd/minimum-wage), and the Department of Labor notes that some state laws provide greater protections and employers must comply with both. In practice, pay the rate the job would pay. 2. **Put the person on payroll.** That means the usual new-hire paperwork, including Form I-9 and Form W-4. Paying cash “off the books” or calling a one-day trial a contractor engagement creates more risk, not less. 3. **Record the hours.** Track start and finish times like any shift. 4. **Cover them for safety.** Check that your workers’ compensation coverage applies to them. 5. **Explain the terms in writing.** State that it is a paid trial of a set length, the rate, and when they will hear a decision. 6. **Keep it short.** A few hours to a day is usually enough to see what you need. Some employers prefer a longer paid trial in the form of a temp-to-hire arrangement through a staffing agency, where the agency employs the worker during the evaluation period. Our comparison of [temp-to-hire and direct hire](https://russellstaffinginc.com/temp-to-hire-vs-direct-hire-which-hiring-model-is-right-for-your-business/) covers when that makes sense and what it costs. ## Freelance Trial Projects Are a Different Arrangement When you are hiring a genuine independent professional, such as a designer or copywriter who runs their own business, a small paid trial project is common and sensible. The terms should be agreed up front and paid at the freelancer’s rate. cfwork.com explains [how to scope and pay a freelance trial project](https://cfwork.com/freelance/how-to-use-a-trial-project-to-vet-a-freelancer-before-full-commitment/) before committing to a larger engagement. That model does not convert an hourly retail or kitchen trial shift into contracting work. ## Volunteers, Interns and Training ### Volunteers The Department of Labor’s [fact sheet on internships](https://www.dol.gov/agencies/whd/fact-sheets/71-flsa-internships) says the FLSA requires for-profit employers to pay employees for their work. The volunteer exception it describes covers people who volunteer freely, without expecting compensation, for religious, charitable, civic or humanitarian purposes at non-profit organisations, and certain public-sector volunteers. A job candidate at a commercial business does not fit that description. ### Interns Courts judge unpaid internships at for-profit employers with the “primary beneficiary test,” which the same fact sheet describes as a flexible test where no single factor is determinative. It is built around educational programmes, not around auditioning job applicants, so it is not a route to unpaid trial shifts. ### Pre-employment training For existing employees, Fact Sheet 22 says training time is not counted as working time only if four criteria are all met: it is outside normal hours, voluntary, not job-related, and no other work is concurrently performed. Required training for a job someone is about to start fails those tests. If a candidate must complete your training before starting, that is generally paid time. ## Designing a Better Selection Process The appeal of a working interview is that it shows how someone behaves on the job. You can get much of that from a structured process: - Use the same questions for every candidate, tied to the job description. - Add a short, realistic simulation that does not touch live work. - Check references with specific questions about reliability and teamwork. - Use a paid trial shift for finalists only. Structured interviews also reduce legal risk on another front. Our guide to [interview questions employers should not ask](https://russellstaffinginc.com/illegal-interview-questions-employers/) covers the EEOC’s guidance on pre-employment inquiries. ## State Law Many states have their own minimum wage, reporting-time pay and final-pay rules that may apply to a trial shift. Some also have specific guidance on working interviews in certain industries. Check your state labor department before introducing trial shifts as a standard step. ## Frequently Asked Questions ### Are unpaid trial shifts legal? For a for-profit US business, an unpaid trial shift in which the candidate does real work is very likely to create a wage obligation. The FLSA defines “employ” to include “to suffer or permit to work,” and the Department of Labor says work that is suffered or permitted must be paid. ### How much do I have to pay for a working interview? At least the applicable minimum wage for the hours worked: $7.25 per hour federally, or your state or local minimum if higher. Paying the regular rate for the job is simpler and fairer. ### Can I ask a candidate to complete a skills test without pay? A short, simulated test that produces nothing your business uses is generally treated as part of the interview. If the output is used in your operations, it starts to look like work. ### Can I pay a working interview in cash? Pay should go through payroll with the normal withholding and records. Cash payments without records make it harder to show you met your obligations. ### What if the candidate offers to work for free? Politely decline and offer a paid trial instead. 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