Legally, employers can claim ownership of anything you create, design, or develop on-the-job. They pay for your time and become the corporate owners of any on-the-clock product. It’s an age-old agreement, codified now in employee contract law. But what about the work-product of those gray-area activities? Interviews, onboarding, and training muddy the waters of time paid and work produced.
Is it legal for your employer to sell a product you made during training? Is it legal for them to use a work product (ex: marketing designs) that was attained to prove skill during an interview? There are many variations of not-quite-work time that might produce something valuable to the company. If your time was not paid, then the product cannot legally be used to benefit the company.
Let’s define each of the common work-product gray areas and whether it’s legal for the company to benefit without compensation.
Illegal: Unpaid Interview Assessment Product
The vast majority of interviews are unpaid. Candidates arrive on their own time, and employers often ask them to display their skills. This may be an independent project, a group collaboration, or just a brainstorming session with the interviewer to test your skills. Employers cannot legally use or sell the work product of unpaid interviews.
Gray Area: Paid Interviews
As a rule-of-thumb, if you were paid for the interview (minimum wage or higher) then the employers can claim the product. However, there are so many ways that employers have mismanaged the paid interview structure that this has become a legal gray-area. For paid time before official hiring, the right protocols must be used.
You must be compensated at minimum wage or higher. Time worked at the job must be covered by payroll taxes, worker’s comp coverage (confirmed with carrier), signed copy of the handbook, and the employee must be legally eligible to work. Because on the job, you are legally an employee even if there is not yet an employee contract.
Illegal: Unpaid Training Work Product
The same rules apply for any training time that is not paid at or above minimum wage. Training often produces work-product because it involves hands-on work and practice. Work-product might be time doing the job or the result of a project made during training. If you were required to clock-out during training time or train outside of work hours and were not compensated for your time (minimum wage or above), then the work-product is yours alone.
An employer who has not paid for your time cannot claim the products you make during unpaid hours.
Legal: Paid Training Work Product
That said, it is legal for an employer to claim the product of paid training. If your employer pays you minimum wage or above for the time spent training, they can claim the product of that training. This, of course, can be stretched into legal gray areas about value and exploitation, but most of the time paid training legally gives the employer product-ownership. This, of course, assumes the employee is already covered by payroll, worker’s comp, etc.
Illegal: Unpaid Working Interviews or Onboarding Product
Working interviews have become a legally charged term, because not all employers do it correctly. If all the basics of employment (mentioned in ‘Paid Interviews’ section) are met, then time spent working without a long-term employment contract is legal. Employers are free to benefit from any value produced.
However, if the employee’s time is not properly covered by employment requirements, then using the product of said interview is also illegal.
Illegal: Misclassified Working Interviews and Probation Periods
The most common mistake involving working interviews is misclassification. Employers often assume they can mark a trial period as ‘contractor’ work. However, if there is no contract, a probationary employee cannot be a contractor. Any other “I can just” solution is likely to overlook the essential requirements of working time, and therefore the rights to work product value.
Legal: Product from Paid Temp-Agency or Contracted Staff
Lastly, there is an interesting exception for temp-agency workers. Because temp-agency workers are already working for the agency, they are covered by the basics of payroll, taxes, and insurance. Employers can ask them to go through working interviews because their time is being compensated already. Temporary contracts can also be used to make an early short-term arrangement for pre-hiring work. If a contract is signed that defines who owns the work product, it defines the working and ownership scenario.
Has your work product from unpaid interviews or training been used by the company? If so, this is a form of theft and has been used to implement massive fraud. You can reclaim your intellectual property and/or hold your employers accountable with the help of legal services. Here at Aiman-Smith and Marcy, we are dedicated to holding employers to legal standards. Contact us today to learn how we can help you defend your employee rights, both on and off the clock.