Are Working Interviews Legal? Paying for Trial Shifts
Quick Answer
A working interview or trial shift is legal, but if the candidate performs productive work for a for-profit business, the time is generally hours worked and must be paid at least minimum wage. Federal law defines "employ" to include "to suffer or permit to work," and the Department of Labor says work suffered or permitted is work time that must be paid. To stay safe, keep unpaid steps to interviews and short skills tests that don't produce work you use, or bring candidates on for a short paid trial shift and run it through payroll like any other new hire.
Hiring the wrong person is expensive, so it's natural to want to see a candidate in action before making an offer. Restaurants ask cooks to work a dinner rush. Salons ask stylists to do a few cuts. Contractors bring a helper out for a day on a job site. These "working interviews" or "trial shifts" can be a great way to judge fit and skill.
The problem is pay. Many businesses run trial shifts unpaid, assuming they're part of the interview. Under federal law, that can be a wage violation. This guide explains the federal rules, where the line falls between an interview and work, how to run a paid trial shift and alternatives that let you assess skills without the risk.
Note: This is general information, not legal advice. It covers federal rules under the Fair Labor Standards Act (FLSA). State laws may add requirements, and some states have higher minimum wages. Check with an employment attorney if you're unsure.
What Is a Working Interview?
A working interview, sometimes called a trial shift, stage or job tryout, is a hiring step where a candidate performs some of the actual job before a final hiring decision. It can last an hour or a full day or more.
| Hiring step | What happens | Typically paid? |
|---|---|---|
| Traditional interview | Conversation about experience and fit | No |
| Short skills test | Candidate shows a skill in a test setting; work isn't used | Generally no |
| Job preview or tour | Candidate observes the workplace without working | Generally no |
| Working interview or trial shift | Candidate performs real work for the business | Yes, generally |
What Federal Law Says
The FLSA requires covered employers to pay employees at least the federal minimum wage for all hours worked, and overtime for hours over 40 in a workweek. Two parts of the law matter most for working interviews:
- The definition of "employ." The Department of Labor explains that by statutory definition, the term "employ" includes "to suffer or permit to work."
- Unrequested work still counts. The Department of Labor says work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. Federal regulations add that the reason for the work is immaterial.
Put simply, if a candidate does productive work for your business, such as serving customers, preparing food that's sold, cutting a client's hair or working on a paying job site, there's a strong argument they were employed during that time and must be paid. Calling it an "interview" doesn't change that.
What About the Internship Test?
Some business owners wonder if a trial shift is like an unpaid internship. The Department of Labor's internship guidance uses a "primary beneficiary test" that courts apply to interns and students at for-profit employers. It focuses on educational programs, not job candidates trying out for a paid position. A trial shift where the candidate does regular work mostly benefits the business, so the internship rules aren't a reliable way to avoid paying. See unpaid internships: when do interns have to be paid.
Where the Line Falls: Interview or Work?
| Unpaid assessment is lower risk when... | Paid time is needed when... |
|---|---|
| The task is short, such as under an hour | The candidate works a shift or a large part of one |
| The work is a test and isn't used by the business | The work is sold, delivered or used |
| No customers are served | The candidate serves real customers |
| The candidate demonstrates, then you discuss | The candidate fills in for a staff member |
| A manager watches the whole time | The candidate works alongside staff like an employee |
If you're unsure, the simplest and safest approach is to pay. A few hours of wages is far cheaper than a wage claim and the time spent defending it.
Examples by Industry
| Business | Higher-risk unpaid trial | Lower-risk alternative |
|---|---|---|
| Restaurant | Candidate works the line during dinner service | Paid trial shift, or a short cooking test where dishes aren't served |
| Salon or barbershop | Candidate cuts paying clients' hair | Paid trial, or a demonstration on a model with no charge |
| Construction or trades | Candidate works a full day on a paying job | Paid trial day, or a short shop test |
| Retail | Candidate works the register on a busy Saturday | Paid trial shift, or a role-play sales scenario |
| Office | Candidate completes real client work | Paid project, or a sample exercise you won't use |
| Cleaning | Candidate cleans a customer's home | Paid trial, or a walkthrough explaining their process |
How to Run a Paid Trial Shift
- Decide the length and pay. Keep it short, often a few hours to one shift, and pay at least the applicable minimum wage, ideally the rate for the job.
- Tell the candidate in writing. Explain that it's paid, how long it lasts and what they'll do.
- Complete new-hire paperwork. Treat the candidate as a short-term employee for payroll and tax purposes. Many businesses do this by hiring for the trial period and deciding afterward whether to continue.
- Have them clock in and out like any other employee.
- Provide safety training and any required protective equipment.
- Assign a point person to guide and evaluate them.
- Evaluate with a scorecard. Use the same criteria for every candidate. See the hiring scorecard.
- Pay on your regular payday through payroll, not off the books. See can I pay my employees cash.
- Follow up promptly with a decision.
Sample trial shift message: "Thanks for interviewing with us, Alex! We'd like to invite you to a paid trial shift on Thursday from 4 to 8 p.m. You'll work with our kitchen lead on prep and the line. We'll pay $18/hour for the shift through our regular payroll, so please bring ID and fill out new-hire paperwork when you arrive. Wear closed-toe, non-slip shoes. We'll let you know our decision by Monday."
Alternatives to Working Interviews
If a paid trial shift doesn't fit, there are other ways to see what candidates can do:
| Alternative | How it works | Best for |
|---|---|---|
| Skills test | Short test of a key skill, separate from real work | Trades, kitchens, admin roles |
| Work sample review | Candidate shows past work, photos or a portfolio | Creative and skilled trades |
| Scenario questions | "What would you do if..." questions about real situations | Customer service, leadership |
| Job preview | Candidate tours and observes without working | Helping candidates decide if the job fits |
| Reference checks | Talk with past supervisors | Every role |
| Probationary period | Hire, then evaluate during an initial period | Confirming fit after hiring |
A probationary period is often the best substitute. You hire the person, pay them for all work and evaluate performance over the first weeks. See also illegal questions to not ask when doing a reference check.
Safety and Insurance Considerations
A candidate doing real work faces the same hazards as your employees. If they're hurt during an unpaid trial, questions about insurance coverage and liability get complicated. Running the trial as paid employment, with proper onboarding, makes it clearer that the person is covered like any other employee. Talk with your insurance agent about how your workers' compensation and liability policies treat trial shifts.
Safety basics for any trial:
- Explain hazards and safety rules before work starts.
- Provide required protective equipment.
- Don't let candidates use equipment they haven't been trained on.
- Keep candidates under 18 away from tasks child labor rules prohibit. See teen hour and job rules.
Fair and Consistent Trials
Trial shifts are still part of hiring, so anti-discrimination rules apply. Give every candidate for the same role the same type of trial, judge them on the same criteria and document the results. Avoid asking illegal or personal questions during the shift just because the setting feels casual.
Common Working Interview Mistakes
- Unpaid trial shifts where candidates do real work.
- "Paying" with a meal or gift card instead of wages.
- Paying cash off the books instead of through payroll.
- Trials that stretch over several days without pay.
- No safety training before hands-on work.
- Inconsistent trials for candidates in the same role.
- Not tracking hours, so trial time is missed in payroll.
Working Interview Checklist
| Step | Done? |
|---|---|
| Decide: paid trial shift, skills test or other alternative | |
| Keep unpaid tests short and separate from real work | |
| Pay at least minimum wage for any trial with real work | |
| Explain the trial in writing to the candidate | |
| Complete new-hire paperwork for paid trials | |
| Provide safety training and protective equipment | |
| Track trial hours on the time clock | |
| Evaluate every candidate with the same scorecard | |
| Pay through regular payroll |
Minimum Wage, Overtime and Records for Trial Shifts
Once a trial shift is paid work, the usual wage and hour rules apply:
- Minimum wage: pay at least the federal minimum wage, or your state or local minimum if it's higher.
- Overtime: if a candidate works more than 40 hours in a workweek for you, which is rare for a trial but possible over several days, overtime applies.
- Records: keep a record of the hours worked and pay, just like for any employee.
- Pay timing: pay on your regular payday, even if you don't hire the person.
Many small businesses find it easiest to set a standard trial length, such as four hours, and a standard rate for each role, so managers don't have to make it up each time.
Designing a Fair Skills Test
If you'd rather use an unpaid skills test, design it so it's clearly a test and not free work:
- Keep it short and focused on one or two key skills.
- Use a practice setting, such as a test kitchen station, a sample spreadsheet or a demo model.
- Don't sell, deliver or use what the candidate produces.
- Don't have candidates serve real customers or fill in for staff.
- Give every candidate for the role the same test and score it the same way.
| Role | Example skills test |
|---|---|
| Line cook | Prepare one dish from your menu at a test station, not served to customers |
| Bookkeeper | Reconcile a short sample bank statement |
| Electrician's helper | Identify tools and explain a basic task in the shop |
| Receptionist | Role-play a phone call and schedule a mock appointment |
| Server | Take a mock order and describe how they'd handle a complaint |
Scoring a Trial Shift
Decide what you're looking for before the trial starts, so the decision isn't just a gut feeling. A simple scorecard might rate:
| Area | What to watch for |
|---|---|
| Core skills | Can they do the key tasks correctly? |
| Speed and pace | Can they keep up with a normal workload? |
| Safety | Do they follow safety rules and use equipment properly? |
| Teamwork | Do they communicate and help others? |
| Coachability | Do they take feedback and adjust? |
| Customer interaction | Are they polite and professional, if customer-facing? |
Ask the team members who worked with the candidate for brief feedback too, and record everything in the same format for every candidate.
If You Decide Not to Hire
Let the candidate know promptly and professionally. Pay them for the trial shift on schedule through payroll, and keep the scorecard and records. A respectful experience, even without an offer, protects your reputation with future applicants.
What Candidates Should Know
Being upfront with candidates builds trust before they ever start. Before a trial shift, tell them:
- That the shift is paid, the rate and when they'll be paid.
- How long it lasts and what they'll be doing.
- What to wear and bring, including ID for new-hire paperwork.
- Who they'll report to when they arrive.
- When they can expect a decision.
Working Interviews for Different Job Types
How you structure a trial depends on the role. A few practical patterns small businesses use:
- Hourly frontline roles (kitchen, retail, cleaning, warehouse): a short paid trial shift of a few hours works well, because the skills show up quickly in real work.
- Skilled trades: a short shop test followed by a paid trial day on a job site, with a lead watching closely.
- Office and admin roles: a sample exercise you won't use, or a small paid project if you want to see real work.
- Supervisory roles: scenario questions and a job preview are often more useful than a trial shift, since leadership skills take time to show.
Whatever the role, the rule stays the same: if the person does real work that benefits your business, pay them for it.
Track Trial Shifts With Updoot
Updoot's employee time clock lets trial hires clock in and out like everyone else, so every paid hour is captured. The payroll report includes trial shift hours with regular time, and SOP management gives new people the safety steps and procedures they need on day one.
Sources
- U.S. DOL: Fact Sheet #22, Hours Worked Under the FLSA
- eCFR: 29 CFR 785.11, General (Work Suffered or Permitted)
- U.S. DOL: Fact Sheet #71, Internship Programs Under the FLSA