Employee Working Interviews: Are They Legal?

What Is a “Working Interview” and How Does It Work?

A “working interview” is the act of assessing a job candidate’s skills and ability to fit with your existing team by bringing them in to perform work for your business temporarily before you officially bring them on board. Traditionally, working interviews take place after a successful verbal interview.

On the surface, the idea of bringing in job candidates for a few hours or days without actually hiring them until they prove themselves sounds perfectly logical and fantastic, doesn’t it? 

However, using working interviews does not exempt you from your obligations as an employer, and performing working interviews without understanding their legal implications can actually get you in a lot of trouble.

Now, let’s take a look at where the idea of a “working interview” came from.


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The Origins of the Working Interview 

A working interview is a marketing device created by temporary employment agencies as a try before you buy option. 

The idea was that employers could try out as many employees as they needed to from a temp agency’s stable until they found someone they liked and hired him or her permanently. 

A trial run is easier and less hassle than interviewing and hiring several candidates yourself. And it may be worth it to pay a small fee for pre-vetted candidates. However, this setup only works when your candidates are being supplied directly by an agency.


The Temp Agency Loophole

The reason the temp agency “loophole” makes it legal to perform working interviews is that the candidates are actually employed by the temp agency when sourced in this way. 

More specifically, the temp agency fulfills all of the new hire paperwork and employer obligations for you. Many employers forget this important fact. 

It is when employers attempt to cut out the temp agency “middleman” that they end up vulnerable to a host of problems. These include: 

Moreover, if you do not hire the worker and they become disgruntled, they now have leverage over you to file a complaint because you have not complied with the law.

FREE GUIDE: Get CEDR’s Guide to Legal Working Interviews Here!


How to Evaluate Your Applicants Without Putting Your Business at Risk

Though working interviews as they are often performed can leave your business vulnerable to fines, fees, penalties, and potential litigation, there are a number of options available to employers that they can use to evaluate their applicants legally.


Have Candidates Observe or Shadow

Having your candidates come in to observe your business in action can be a great way for them to break the ice with the rest of your team and see how they will gel with your other employees. 

Providing an observation period or having a candidate shadow one of your employees will also give the candidate an opportunity to determine whether or not they actually want to work for your business.

Where the working interview is usually employed as a method of evaluating a candidate, it’s important to note that the working interview framework is also a chance for your potential employee to determine if the workflow at your business will work for them. 

After all, there’s no sense hiring someone if they aren’t likely to stick around long-term. Allowing your candidates the chance to see firsthand what it’s like to work at your business can help you reduce the costs associated with high turnover.


Have Candidates Perform “Skills Tests”

If your “interviewee” is performing work for your business that would usually be performed by one of your employees, in a legal sense, that person must be treated as an employee of your business.

By testing your applicants’ abilities and knowledge without having them perform actual work for your business, you can get an idea of their skill level without putting your practice at risk. “Skills tests” are especially helpful when it comes to evaluating candidates for clinical positions.

For example skills tests you can use to test applicants at your business, download our free Working Interviews Guide, Make Working Interviews Work.


The “Getting Acquainted” Period

Instead of performing an unpaid working interview or trying to call someone an independent contractor when they do not fit those requirements, hire them and use a “Getting Acquainted” period to judge whether a new hire will be a long-term fit for your practice (90 days is often a good span of time for this). 

After a thorough interview process and background check, go ahead and put them on your payroll. Put your new employee on notice that they are not yet eligible for benefits and must first prove themselves before they qualify.

If you have this policy in your handbook, you can use it to get the same benefits you would get from a working interview (i.e., a valid trial period with no obligation to continue employment), as long as you don’t forget one important rule: If you’re not using a temp agency, and the person is not a valid independent contractor, once a candidate starts working for you, he or she IS your employee.

Test your applicants, not your legal compliance. Click to download the free Working Interview Guide from CEDR's HR experts.

Working Interview Myths Busted

Given all of the misconceptions surrounding working interviews, we thought we’d take a moment to lay out the reality of the process.


The Following Statements are ALL FALSE:

      You don’t have to pay workers if you call it a “working interview” and the process only takes a couple of hours.

      No paperwork means they were “never there,” and you can therefore fly under the radar — especially if you pay them less than $600.

  Your workers’ compensation will automatically cover a candidate’s injuries.

      You can just call them an independent contractor or “casual labor” and 1099 them.


Instead, to be legal and protected, once someone starts working for you, you should do ALL of the following:

  •   Pay them no less than minimum wage.
  •   Withhold payroll taxes.
  •   Get a background check and verify their eligibility to work in the US.
  •   Cover the employee for Workers’ Compensation, and notify your carrier to ensure coverage.
  •   Ensure the employee has completed HIPAA training.
  •   Provide a copy of your Employee Handbook and have them sign it. The protections in it apply only to those who receive a copy and have acknowledged the policies inside.


Why can’t I just call them an independent contractor?  

You can’t make someone an independent contractor just by having them sign a contract. 

If they perform duties usually done in your office by employees, and do so under your control, using your equipment, in your office, and at the hours you request, they are an EMPLOYEE.  

If you call them a “contractor” to avoid payroll taxes or other employment benefits, you have misclassified them, and you are subject to penalties from both the IRS and Department of Labor. (Even if your accountant tells you otherwise! Trust us on this.)


Know The Working Interview Laws & Agreements

Again, when you bring someone new on board, go through the full hiring process, including background checks, U.S. employment eligibility verification, and handbook distribution, etc. 

As appealing as it may seem, working interviews are illegal when performed without going through a temp agency or the complete hiring process. And, when you choose to fly under the radar, you have more liability – not less.

For more on working interviews, including example skills tests you can use to evaluate your candidates without putting your business at risk, download our free Working Interviews Guide, Make Working Interviews Work.

Updated August 31, 2020; originally published February 21, 2011.


Learn the legal way to perform a working interview. Click to download the free working interview guide from CEDR's HR experts.

Aug 31, 2020

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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