An Employer Asks You To Do Work For Free: Legal Or Not?

work for free

Dear Donna,

I run into many problems with employers regarding availability and doing free work to promote business.
An example is: A company would tell me that I am an independent contractor but would require me to stay in the area, without pay, in case someone would want to schedule my services last-minute.

Another example: A company required me to perform free services for their customers, but I would not be paid because it would be promoting my services. But if it is required of me, I think that is supposed to be paid for.

One other problem I have is the "practical" interview, where I am required to do an hour of free work in my "interview" to prove I know what I am doing. Keep in mind that in my state, all people in my industry are required to be licensed before working anywhere.

Can you please tell me if there are any labor laws regarding these examples. I would be very grateful.

Thank you,

MC, I'm glad you asked. I'll address the "working interview" first. This is a pretty common problem. The concept of "free work" for interviews has caught on, and I'd say it really depends on the circumstances. It's not unusual for a law firm to, for instance, require a writing sample, which might even mean requiring applicants to write a memorandum of law on a current legal issue, to see their writing style.

The difference is if the employer is getting something they would normally pay for.
In my example, if the law firm asked 20 applicants to write 20 different memoranda which it then submitted to courts on 20 different cases, the applicants should be paid for their work. If, however, the writing sample is just a sample, then the applicant need not be paid.

Using a different industry as an example, if you were a massage therapist and the company required you to give an hour demonstration of various massage techniques so that they could be sure your techniques meshed with what their customers want, that's probably not something you have to be paid for. If, however, they required you to give a one-hour massage to a customer, then you likely need to be paid.

If the customer is charged, you definitely need to be paid for your work.

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Let me give you some other examples:

A typing test for speed can be unpaid, but typing a letter that the company uses and sends out to customers must be paid.

Likewise: a physical agility test that shows your ability to lift heavy object may be unpaid. But if you're asked to haul heavy objects on a job site -- that must be paid.

Get the drift? The issue here is similar to that of unpaid interns. Companies have to be very careful when asking for free work. Most times, they'll be violating the Fair Labor Standards Act.

More:10 Tricks Employers Use To Cheat Workers Out Of Overtime

Employers often take advantage of independent contractors. As I've said in the past, most independent contractors are misclassified and should be paid as employees. If the company controls the time, place and manner of your work, you're an employee. That means they can't tell you to how or when to perform your services.

If, for instance, you're a lawyer, then you get an assignment and are given a deadline. You can then work on it at your own pace and turn it in by the deadline. If you're a massage therapist, then you should be able to set a schedule that works for you.

No one can ask you to promote your services for free. As to the company that demanded that you do free work to "promote your services," it flat-out broke the law. If you're a contractor, you decide how to promote your work, not the company.

An explanation of what makes you a contractor: If the company tells you how to do your job, you're legally an employee. The company can tell a contractor what results they want, but not how to accomplish the task. Once the company tells you that you have to work certain hours, have to be on-call, and when you can take off, you're an employee.

Other indicators that by law, you're an employee are that the company provides the equipment, hires your assistants (or prohibits you from hiring assistants), wants you to work exclusively for them, and evaluates your work.

An employer can't require you to 'volunteer.' What they were doing is requiring you to be a "volunteer" working for their customers. If the company "suffers or permits you to work," you have to be paid at least minimum wage. Period. There's no such thing as "volunteering" at a for-profit company.

If your company does a Hurricane Sandy relief effort and asks for employees to volunteer to help out, then that's OK. But once it's required, then you're no longer a volunteer. If the company says you must help out or be disciplined, you must be paid for your time.

What should you do if the employer is breaking the law? If a potential employer or current employer is making you do free work that you think may be illegal, you should contact the Department of Labor, your state labor department, or talk to an employment lawyer in your state about your rights.

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question here, your question might be featured in one of my columns, or an upcoming live video chat.

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