A restaurant wants me to do an unpaid trial shift before hiring me. Is that legal?
The short answer
What to check
Questions that separate a tryout that’s work from one that isn’t. They come from DOL’s hours-worked and internship fact sheets; no DOL page speaks to trial shifts by name.
| During the trial, did you… | Points toward | Why |
|---|---|---|
| Take orders, run food, or serve real guests? | Work | Work the employer permits is work time. |
| Do work a paid employee would otherwise do? | Work | DOL’s intern test asks whether you complement or displace paid staff. |
| Stay past the time you were told, to finish up? | Work | Work not asked for but allowed still counts. |
| Only talk with the manager, or take a menu quiz? | Likely not work | You aren’t doing the restaurant’s work; you’re applying. |
| Only watch, without helping with guests? | Unclear | No federal rule draws the line for a job applicant. |
If a trial is work, the federal minimum is $7.25 an hour. A 4-hour trial comes to at least $29.00. If the restaurant counts your tips toward that with a $2.13 wage, it has to meet the tip-credit rules, including telling you about the tip credit in advance.
Not tax or legal advice. The hours are made up. Your state may have a higher minimum wage.
Plain English
What federal law says about work
The Fair Labor Standards Act defines “employ” to include “to suffer or permit to work.” DOL says work that isn’t requested but is “suffered or permitted” is work time the employer has to pay for. So the question isn’t what the restaurant calls the shift. It’s whether you were working.
Why the unpaid-intern test doesn’t fit
DOL’s Fact Sheet #71 explains when an intern or student at a for-profit business can go unpaid. Courts use a “primary beneficiary” test with seven factors, and most of them are about school: training like a classroom’s, ties to a formal education program or academic credit, and fitting the academic calendar. One factor is whether the intern’s work complements, rather than displaces, paid employees. If the analysis shows the person is really an employee, DOL says they’re owed minimum wage and overtime. A trial shift for a serving job usually has no school tie at all.
Tips during a trial
If you’re working as an employee, federal rules say your employer can’t keep any part of the tips you receive. If a restaurant keeps the tips from tables you served during a “free” trial, write down what happened that night.
How to handle the ask
Example wording
“I’d be glad to do a trial shift. Will it be paid, and will I keep any tips? Can you confirm the hours by text?”
If you do it unpaid anyway: write down the date, start and end times, what you did, and who was there.
Where to ask
DOL’s Wage and Hour Division takes calls at 1-866-487-9243 and says complaints are confidential; see How do I report my restaurant for taking tips? Your state may have its own rule; DOL keeps a list of state labor offices.
Common mistakes
- Treating a trial as unpaid just because it was called a “stage” or “tryout.”
- Not writing down the hours, because you weren’t hired yet.
- Letting the restaurant keep the tips from tables you served.
- Assuming the unpaid-intern test covers job applicants. It’s built around education programs.
Official sources
- U.S. Department of Labor, Fact Sheet #22: Hours Worked Under the FLSAdol.gov
- U.S. Department of Labor, Fact Sheet #71: Internship Programs Under the FLSAdol.gov
- U.S. Department of Labor, Fact Sheet #15: Tipped Employees Under the FLSAdol.gov
- 29 CFR 531.52, General restrictions on an employer’s use of its employees’ tipsecfr.gov
- U.S. Department of Labor, Wage and Hour Division: How to File a Complaintdol.gov
- U.S. Department of Labor, Wage and Hour Division: State Labor Officesdol.gov
Last verified:
Checked DOL Fact Sheet #22 (revised July 2008), DOL Fact Sheet #71 (updated January 2018), DOL Fact Sheet #15, and 29 CFR 531.52.
Still open: No DOL rule or fact sheet addresses trial shifts or “stages” by name. Where a short observation-only tryout crosses into work depends on the facts, and courts decide close cases.