Get Paid While Interviewing for a Job

job-interviewThere was an interesting case in California recently on whether some people should be paid or not while attending an interview.

Staffing businesses may be required to compensate for interview time their candidates spend and may be subject to the recently enacted triple compensation legislation for all those which have not received compensation.

In a putative class action pending in the federal court for the Northern District of California, Sullivan v. Kelly Services, Inc. (Case No. C 08-3893 CW), Judge Claudia Wilken, ruling on cross motions for summary judgment, has held that the time spent interviewing by a Kelly Services employee seeking temporary work assignments with Kelly Services’ clients is compensable under California law. However, Judge Wilken also ruled that the time spent preparing for and commuting to the client interviews was not compensable, nor was Kelly Services required to reimburse the employees for expenses incurred in attending the interviews.

The court found that under the facts of this case, the employees were “subject to the control” of Kelly Services and Kelly Services “suffered or permitted” the employees to work in connection with the interviews. The court distinguished this case from other circuit court of appeals decisions that held that time spent in job interviews by independent job applicants (non-temporary workers) was not compensable, by focusing on the role played by Kelly Services in the interview process.

The court also rejected several defense arguments: that the client interviews were “voluntary,” instead finding that the failure to interview would prevent the employee from being considered for 50% of the job assignments; and that the employees were not employed in between work assignments. In addition, the court refused to apply the “primary benefit” analysis available under federal law, which provides that time spent for the primary benefit of the employee, not employer, is not compensable.

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