July 31, 2018
Casual labor can be dangerous!
Hard to believe, but an administrative assistant wrote to an advice columnist. This person was frustrated looking for a new job and complained about “The Working Interview.” It seems the applicant actually had worked two days at one company and three days at another company without getting paid and without getting hired.
Caution: If you have applicants do job testing in what’s called a working interview, make sure you pay them for their time. Otherwise it could be a violation of wage and hour laws.
Important: Any time anyone does work for a taxable (“for profit”) employer, the minute a person begins doing work for an employer that person is an employee, covered by all the laws which apply to and protect employees. (Exception: When the employer is a non-profit or government employer and the person is volunteering labor.)
Example: On Daughters-to-Work Day or Kids-Day-at-Work, some of your employees bring their children into your workplace. One employee with a mailing to get out lets her child help with the project because the child is getting bored. Or a very dedicated employee, working in a small farm equipment dealership, is really pressed to get a repair job done and brings a 13-year-old child in “just to help out this one time.”
In instances like these, the child is doing work of benefit to the employer. Therefore, the child is an employee. The employer is automatically violating the child labor laws. And if the child is injured while performing the work, the employer faces Workers’ Comp exposure and possibly a civil lawsuit from the parents.
Back to job testing and a working interview. You have three ways to do this, legally and effectively:
1. Do skills testing.
2. Set up job-simulation tasks, similar to tasks the person would perform on the job, and have the applicants demonstrate their abilities in these job-simulation tasks.
3. Hire your best applicants through a temporary help agency and give the job to the persons who fit the jobs and your needs best.
BOTTOM LINE: Don’t have applicants do jobs which benefit the employer — unless you put them on the payroll. Better: Hire them through a temporary help agency to test them out on the job. Never allow employees to bring their children in to help the employee do some work, unless the work isn’t violating child labor laws and unless the child is treated as any other employee and paid at least minimum wage.
[NOTE: Information and guidance in this article is intended to provide accurate and helpful information on the subjects covered. It is not intended to provide a legal service for readers’ individual needs. For legal guidance in your specific situations, always consult with an attorney who is familiar with employment law and labor issues.]