When does federal law require you to pay a job applicant to interview? Wait, what?!? (UPDATED)

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#TheMoreYouKnow

A big tip of the cap and thank you to Janette Levey Frisch, who is the muse for today’s post.

Yesterday, Janette posted on LinkedIn and a U.S. Department of Labor settlement. This isn’t just any ordinary wage and hour settlement. No, this one settled Fair Labor Standards Act allegations that an employer “[v]iolated the federal minimum wage requirements by requiring candidates for hire to perform a ‘working interview’ to conclude their application but failed to pay the individuals for those hours worked.

I’m gonna let that sink in with you for a bit. If you need some pearls for clutching, I have an extra set.

Even I was somewhat taken aback by this, so I turned to the law firm of Google and Bing for some answers.


UPDATED 12/20/18, 1:00 PM: I misread the Ninth Circuit decision that I’m about to reference below. The original blog post, which I have since vaporized, reflects that. The court actually concluded that the plaintiffs, applicants for a truck driver position, were not employees. I hate making these mistakes. It reminds me of that time that I thought that I had bought some vanilla ice cream from the supermarket for a snack — ok, breakfast — only to come home and realize that the label on the pint — ok, gallon tub — said Rocky Road.

Yes, still I ate it all.

Are you happy now?


Sure enough, this was alleged to be a thing in a case in Oregon.

The plaintiffs were applicants for truck driver positions.  These drivers attended a three-day orientation. On the first day, applicants completed driving and skills tests. During the second and third days, applicants completed tax and administrative paperwork in a classroom setting.

In this Ninth Circuit decision, the federal appellate court concluded that a company did not violate the Fair Labor Standards Act by maintaining a policy not to pay job applicants for their time during a mandatory, three-day, orientation program.

The FLSA definition of “employ” means “to suffer or permit to work.” Although it spanned three days, this was the company’s method for ascertaining its drivers’ training and abilities, and not all participants are hired upon the orientation’s completion. Consequently, the court concluded that orientation attendees are not “employees” under the FLSA.

So do you (or don’t you) need to pay certain job applicants?

Why are you asking me? I’m not your lawyer. It depends.

(See, I am a lawyer.)

But, as Janette points out, “[a]ccording to the DOL, applicants are protected, especially when the ‘interview’ requires the applicant(s) to demonstrate how they’d perform the work required by the job.”

Food for thought next time you ask your job applicants to clean your kitchen and take out the trash.

Or is that just me?

Now if you’ll excuse me, I have to finish my breakfast, err, ice cream.

“Doing What’s Right – Not Just What’s Legal”