Question:
We typically ask new cooks or servers to trail for one shift (unpaid) before making an offer. Most don't complain, but recently someone we didn't hire threatened to report us to the Department of Labor. I paid her, but were we in the wrong?
– Restaurant Manager, New York, NY
Answer:
Trailing is a fixture in our industry. It gives employers a chance to make sure a prospective employee is a good fit on the team. Since certain skills like sense of urgency, knife work, and guest service are difficult to show in an interview, it also gives you, as an employer, a chance to see the prospective employee in action.
Restaurateurs often see trailing as an extension of the interview process. Based on a resume and interview a prospective employee may seem to be a good fit for a position but how will he or she actually perform on the job? As a cook I was asked to make a French rolled omelet or cook the chef lunch as a way to demonstrate that I wasn’t all talk. Later, as a chef, I used simple mystery baskets to test incoming cooks. From an employment law perspective, those kinds of activities would be considered pre-employment testing and are relatively safe and uncontroversial, even if unpaid.
Where it gets tricky is if you ask the prospective employee to work for you as if they were already an employee, especially if you make a successful trail a requirement for future employment. Coming into the kitchen to observe or cooking an “audition” dish is very different than spending a shift doing prep, shadowing and assisting a server, or working a station on the line. If that prospective employee is working, even voluntarily, she could potentially be considered an employee and subject to minimum wage law. The US Department of Labor’s Fair Labor Standards Act (FLSA) reads:
"A situation involving a person volunteering his or her services for another may also result in an employment relationship. For example, a person who is an employee cannot "volunteer" his/her services to the employer to perform the same type service performed as an employee. Of course, individuals may volunteer or donate their services to religious, public service, and non-profit organizations, without contemplation of pay, and not be considered employees of such organization. Trainees or students may also be employees, depending on the circumstances of their activities for the employer."
As is often the case, the safest answer is the most expensive one—provide pay for trails and establish a very clear probation period with periodic evaluations for new employees. As always, consult with your attorney.