When hiring an employee, employers need to be mindful that any tests of the employee’s skills during the hiring process does not cross the line to become actual work that the applicant must be paid for.  Employers sometimes will ask applicants to demonstrate their food preparation skills in a restaurant setting, handling tools in a manufacturing setting, or typing skills in the office setting.  This Friday’s Five covers five issues employers should review to make sure that “try out” time or “staging” does not become work must be paid for:

1. As long as the time is not training the applicant, but is truly testing their skills the time does not need to be paid.

California Wage Orders define “hours worked” as “the time during which an employee is subject to the control of an employer.” Cal.Code Regs., tit. 8, § 11040(2)(K). This includes “the time the employee is suffered or permitted to work….” Id.  Therefore, as long as the employer is only using the time to determine the skills of the applicant it does not need to be paid.

2. If there is no productivity derived from the work performed by the applicant, the time does not have to be paid.

3. The period of time testing the employee is “reasonable under the circumstances.”

4. Each case is different, and the amount of time to test an employee will depend on the position.

The DLSE states in the Division of Labor Standards Enforcement and Interpretations Manual that, “the period of time to test skills of a sewing machine operator will be much less than that needed to test the skills of a computer programmer.”  (See DLSE Manual § 46.7.)  Employers need to evaluate the position, the skills being tested, and the overall context of the interview in making the determination of whether the try out or testing becomes time that needs to be paid.

5. When in doubt, compensate the applicant for the time.

If the testing takes a significant amount of time, or if the product made by the applicant is used or sold to customers, such time could be considered productive time that must be compensated by the employer.