DISCLAIMER: This post contains a general overview of unpaid work. It is not legal advice. If you require information or advice applied to your unique situation, please make an appointment to discuss it with an attorney experienced with the subject matter. Don’t rely solely on what you read on the Internet. Ever.
The short answer is no–at least in New York State, where I am licensed to practice law. Doing free work during a job interview is generally not advisable. Here’s why:
The Purpose of an Interview
An interview is a discussion to see if an employer and employee are right for each other. It’s not a way for an employer to get some work done for free. While the interview process might involve submitting samples of your work or a test, it is typically illegal for the potential employer to have you do work it would otherwise have to pay someone to do.
Distinguishing Assessment from Work
During the interview process, a law firm can probably ask a job candidate to analyze a generic, hypothetical case so the firm can assess the potential employee’s writing and research skills. However, assigning research on an open case is likely work that must be compensated.
Similarly, a technology business could ask prospects to review sample code for errors. However, if the corrected code is going to be used in a product, there should probably be some compensation and clarification of ownership rights.
Avoiding Premature Employee Status
In many cases, performing substantial work during an interview could lead to the candidate being deemed an employee. This has legal implications, including potential wage and hour requirements. Employers would be wise to consult employment counsel before implementing any “testing” done during the hiring process. Likewise, should question the legality of requests for substantial unpaid work and consult their own legal counsel.
Not sure your interview process is compliant?
The Top Three Justifications Employers Give for Not Paying Interns