Make sure all supervisors who have direct contact with job applicants understand this simple rule: No new employee performs any work until HR approves the hiring and provides a start date.
Otherwise, as the following case shows, the applicant’s time spent “working” may become the basis for a Fair Labor Standards Act ( ) claim. Then, it will be your word against the applicant’s as to how many hours he or she actually worked.
Recent case: William McElroy applied for a computer technician job with the New York City Department of Education. Apparently the hiring process is a bureaucratic nightmare, and the supervisor who wanted to hire McElroy let him begin working before the paperwork was complete.
In fact, months elapsed. The school district paid McElroy only sporadically.
McElroy later sued, claiming he had worked many hours and had not been paid. After the court looked at pay records, it concluded McElroy was indeed an employee even if no official decision to hire him had been made. The judge ordered a trial to determine how much the school district owes McElroy. (McElroy v. Klein, et al., No. 05-CIV-5437, SD NY, 2007)
Final note: Establish clear guidelines for hiring and start dates. Don’t allow anyone to start early. Remember, if you allow people to provide labor, they may be employees whether you call them that or not.
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