Your rights
Is an unpaid “working interview” legal in the US?
A “working interview” sounds harmless. But under federal wage law, if you do the real job, the hours usually count, whatever the employer calls them.
The Fair Labor Standards Act (FLSA), the federal law behind the minimum wage and overtime, defines “employ” as “to suffer or permit to work”. Federal regulations add that work an employer didn’t ask for, but allowed, is still work time. What matters is what you actually did, not what the day was called: “interview”, “try-out” or “trial shift”.
So if you ring up customers, prepare food that gets served, or care for patients or residents, those hours are generally hours worked, and at least the minimum wage is owed. Nothing in the FLSA makes a trial shift unpaid by default.
The case employers like to cite
Employers sometimes point to Walling v. Portland Terminal Co. (1947), where the Supreme Court found that unpaid railroad trainees were not employees. That decision rested on a finding that the railroad got no “immediate advantage” from the trainees. A trial shift where you do the job itself is hard to fit into that reasoning.
Some states spell it out
| State | Position |
|---|---|
| California | All pre-hire training time must be paid. Unpaid “try-out time” is allowed only if it is a test of skill (not training), the employer gets no productivity from it, and it lasts a reasonable time. If you report for a shift and are sent home after less than half of it, “reporting time pay” may apply. |
| Washington | “For-profit businesses don’t have volunteers.” Unpaid job shadowing is acceptable only when staff supervise closely and there is little or no work. |
| New York | We found no guidance specific to trial shifts. Call-in pay: if you report to work as asked, you get at least 4 hours’ pay or your scheduled shift, whichever is shorter, at minimum wage. |
Other states apply the general hours-worked rules. We found no state guidance specific to trial shifts for Texas, Florida, Illinois, Oregon or Pennsylvania.
Shadowing or working? A quick test
- Likely fineWatching and askingYou follow a staff member, look around and ask questions. You don’t serve, build, clean or care for anyone.
- Grey areaA short skills testA typing test or a mock task on practice materials. Usually not hours worked if it is short and produces nothing the business uses.
- Should be paidDoing the real jobServing customers, caring for patients, working on real orders. Generally paid time under the FLSA.
Healthcare adds another layer
Nursing homes certified by Medicare or Medicaid must check the state nurse aide registry before someone works as a nurse aide. Registered nurses and LPNs need a license for the state they work in, or a multistate license under the Nurse Licensure Compact. A “trial shift” that involves patient care may not be allowed at all until those checks are done.
If you weren’t paid
- Write down the date, your start and finish times, and what you did.
- Keep any messages that show you were asked to come in.
- Ask the employer for payment in writing.
- Contact your state labor department or the DOL Wage and Hour Division (1-866-487-9243).
Sources
- 29 CFR Part 785 — Hours WorkedeCFR, 2026
- Fact Sheet #22: Hours Worked Under the FLSAUS DOL Wage and Hour Division, 2008
- Tennessee Dental Practice Paying $50,000 in Back Wages and Liquidated DamagesUS Department of Labor, 2018
- Walling v. Portland Terminal Co., 330 U.S. 148US Supreme Court (via Cornell LII), 1947
- Opinion Letter 1993.11.29: Compensation for TrainingCalifornia Labor Commissioner (DLSE), 1993
- Reporting Time Pay FAQCalifornia Department of Industrial Relations, accessed 2026
- Unpaid Internships 101 (F700-173-000)Washington State L&I, 2022
- 12 NYCRR 142-2.3 Call-in payNew York State (via Cornell LII), accessed 2026
- 42 CFR 483.35 — Nursing serviceseCFR, 2026
This guide is general information, not legal advice. We checked the figures against these sources on September 25, 2026. Rules and rates change, so check the official source for your situation.