Author: Trina M. Clayton
When hiring a new employee, many employers find it valuable to observe a candidate perform essential job skills, to help them select the right applicant. An employer may ask a candidate to demonstrate how they would actually perform the job – for instance – having a delivery driver lift heavy boxes, having a cook demonstrate food preparation skills, or having an office worker perform a typing test. Employers should be mindful, however, that depending on what the applicant is asked to do during an interview, and how much time it takes, they may need to pay the applicant for this “try-out” time.
According to the California Division of Labor Standards Enforcement (DLSE), there are three principal factors to consider when determining whether “try-out” time needs to be paid.
- Is the try-out time “reasonable under the circumstances?” As an example, the time it takes an employer to determine if someone can carry boxes safely would be far less than the time it would take for an employer to evaluate the skills of a computer programmer. According to the DLSE, the rate of pay for the job can usually be used as a guide to determine the amount of time necessary for a tryout – with higher-paying jobs typically requiring longer periods of evaluation. If the time period is reasonable, it is less likely an employer will have to pay for this time.
- Does the applicant perform any productive work? During try-out time, an applicant might be asked to type a letter or cook a meal. If the letter is “real” correspondence the employer would otherwise have an employee type, or if the meal is served to an actual paying customer, then the employer would derive a benefit from the applicant’s try-out and this time would have to be compensated. An employer does not need to pay for try-out time if there is no productivity derived from the work performed by the applicant (e.g. if the typed letter is directed to a hypothetical person or entity).
- Is the time used for “testing,” or “training?” If an employer choses to use try-out time to train an applicant on, for instance, a new computer program, and then “tests” the applicant on what they have learned, the employer would have to pay the applicant for this time. In this instance, the employer actually derives a benefit from training the applicant and this would not qualify as try-out time.
While every situation is different, keeping in mind the above guidelines is a good start to make sure you are in compliance with applicable laws and regulations regarding try-out time. For specific legal advice regarding pre-employment matters or any other employment issue, please contact Ad Astra for guidance.