On September 23, 2025, a California federal judge certified a class of Amazon workers alleging that they were not paid for time spent at new hire events. The judge also granted Amazon partial summary judgment on certain of the wage claims for unpaid time spent with I-9 forms, drug testing, and going through the background check process. This ruling followed the Ninth Circuit’s 2022 decision in Johnson v WinCo Foods.
Relying on the WinCo Foods ruling, the Amazon court drew a distinction between activities that are used to verify eligibility for employment, such as drug tests, and new hire events, which the employer controls. There is reasoning behind the distinction, but drawing that line sometimes begets confusion. So, let’s break it down.
Both the WinCo Foods and Amazon courts held that time spent before the employee is hired, or which include activities targeting an employee’s ability to work, need not be compensated. That would include the application and interview process, and under these rulings, any pre-employment physicals or substance testing, or background check. Under the Amazon court’s analysis, that would also not include completing the I-9 documentation.
However, let’s review what time must be paid. Once an employee is officially hired, they must be paid for any “onboarding” or orientation time. Any introductory meetings, events, training, and as here, the new hire “photograph” event, all need be compensated.
Also, pre-hire testing does NOT include menu or other testing to learn information specific to your workplace. That is considered training and must also be paid. As all restaurant owners know, time studying for and taking the test for the Food Handler Card in California now must also be paid.
Where it gets tricky – the new hire orientation documentation and onboarding process may also include completing paperwork for the background check or immigration clearance. Frankly, I would not parse this too closely. If it’s all in one group of papers or one onboarding session, just pay it. If employees are submitting this paperwork remotely and online, estimate the amount of time necessary and add it to their payroll. It should be listed and labeled as “onboarding” time or similar designation. Don’t hide your compliance.
Another reminder – a “working interview” is not a true interview. I’ve addressed this issue before. I know they have workers “staging” on “The Bear” without pay, but please, don’t take your legal advice from television shows. The practice of having people work for a day or a week for free has never been legal. Pay them. If you do not retain them, pay them by a hand check that day and thank them for their time. If you keep them, add that time into their first payroll, and again, label it accordingly. Also remember that these working interviews make these folks true employees, for all purposes, such as break violations and potential worker’s compensation claims. A class action or PAGA representative needs only ONE violation to file a lawsuit on behalf of ALL your other employees. Have we seen this? YES. Another reason these working interviews make me so nervous.
If in doubt, err on the side of paying for time. And if you have questions, reach out. I know you all do.
