The Pros and Cons of Holding Try-Outs for Job Openings

Try-outs during the application process involve an employer observing a job applicant performing the skills needed for the job. For example, an applicant may be asked to demonstrate food preparation skills for a chef role, Excel skills in an administrative setting, or how they would lead a workout course as a personal gym trainer. Try-outs can be a helpful tool in your hiring process by providing valuable information you won’t get from a resume or traditional interview. However, employers should keep some potential pitfalls and best practices in mind before implementing a try-out process.

Potential Risks

Unpaid Try-Out Time vs. Compensable Hours Worked

In some circumstances, having an applicant demonstrate their job skills may be compensable hours worked, which means the time must be paid at least at the minimum wage. According to the DLSE, try-out time can only be unpaid if all of the following are met:

1. The time is not spent training the applicant to do the job.
   • Remember, the tryout is to observe the applicant’s existing skills—not to teach them how to do the job. Avoid instructing the applicant on how the task is done at your business, offering tips on how to do the task better or explaining your procedures during the try-out.
2. There is no productivity derived from the work performed by the prospective employee.
   • If the try-out is benefiting the business in any way other than providing the opportunity to assess the candidate’s skills, such as the applicant making a product that will later be sold to a customer, the time should be paid. Avoid trial shifts where the applicant may find themselves helping an actual customer.
3. The period of time is reasonable under the circumstances.
   • A try-out should not extend beyond the time needed to assess the applicant’s skills. What is a reasonable amount of time needed depends, of course, on the job. For example, a try-out for operating a sewing machine will likely take less time than a try-out for computer programming. Keep try-outs as short as possible.

Potential For Discrimination Claims

If you have five or more employees, remember that state and federal law prohibit discrimination in the employment selection process based on protected characteristics. This includes selection processes that screen out applicants based on protected classifications or do not provide applicants with reasonable accommodations due to disability or sincerely held religious belief. If you are planning to hold try-outs for an open position, make sure your try-outs are testing skills needed for the job and documented in a job description. Some employers may wish to consider professionally validated tests specific to their job. You should also have a documented process that allows for applicants to seek accommodations required by law.

Consider Potential Confidential Information and Intellectual Property Issues

For some employers, try-outs can raise concerns about protecting company confidential information or ownership of intellectual property developed during the try-out. Employers may wish to consult counsel and implement pre-try-out agreements to address these issues.

Best Practices

To make the most of try-outs—and avoid these potential pitfalls—planning is key.

• Make sure to have a written description of the try-out process in addition to the job description. This should include a description of what the applicant will be asked to do and approximately how long the try-out will take. The relationship between the try-out and the job duties should be clear.
• Applicants should be notified of the right to request accommodations due to disability or religious belief.
• Address any confidential information or intellectual property issues in advance of try-outs.
• Ensure those involved in the hiring process understand the details of the try-out process and the importance of ensuring the process is followed.

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