Does an employer have to pay an employee for time spent in an interview for an internal position?

It depends. Although time spent by applicants interviewing for a position is not considered hours worked under wage and hour law, when the applicant is also an employee, circumstances could trigger an obligation to pay an employee for this time.

The Fair Labor Standards Act (FLSA) defines by regulation activities that would be considered hours worked, thereby requiring wage payments to an employee. Time spent interviewing an employee is not addressed directly in the FLSA hours worked regulation. However, time spent between an employee and employer interviewing is considered a “meeting.” Therefore, employers should review FLSA hours worked regulation 29 C.F.R. §785.27—Lectures, Meeting, and Training Programs to determine if the time spent with an employee in an interview is considered hours worked. See FLSA Regulation 29 C.F.R. §785.27—Lectures, Meetings and Training Programs.

According to this regulation, if any one of the following four criteria are not met, the employer must consider the time spent interviewing the employee as hours worked:

• Attendance is outside of the employee’s regular working hours.
• Attendance is voluntary.
• The course, lecture or meeting is not directly related to the employee’s job.
• The employee does not perform any productive work during such attendance.

For example, Amanda, a cashier, applied for the front-end supervisor position with her current employer. Amanda’s regular work hours are 12 p.m. to 8 p.m. The hiring manager interviews Amanda from 4 p.m. to 4:45 p.m. before he leaves for the day. Because the interview is conducted during Amanda’s regular working hours, this would be considered hours worked requiring the employer to pay Amanda for the time spent in the interview meeting. The interview is voluntary because Amanda was not required to apply and interview for the job but did so voluntarily. The act of interviewing is not directly related to Amanda’s job as a cashier, and she is not performing any productive work during the interview. However, the first of the four criteria listed in the regulation is not met, so the time spent interviewing Amanda is considered hours worked requiring wage payment.

Alternatively, the employer could choose to interview Amanda at 10 a.m. Given that this time is outside of Amanda’s regular work hours, 12 p.m. to 8 p.m., that the interview is voluntary and is not directly related to Amanda’s job as a cashier, and that she is not performing work during the interview, all four criteria are met. Therefore, the time Amanda spent interviewing is not hours worked, and the employer does not have to pay her.

Given the above variables, employers are wise to develop an internal interviewing procedure that ensures compliance with the FLSA.