September 22, 2025
Avoiding the Gangplanks of Onboarding
Hiring may have been a bit cleaner fifty years ago. An employer made an offer, the candidate accepted it, the candidate was given a start date, and that was the first day of work. Then, we got crafty and spun the process and terminology. The term onboarding was coined, referring to activities that engage your new hire before the first day of work. The purpose was to forge a relationship with your new hire, help the person feel a connection to you, the employer, and foster a better working relationship from day one. Sounds great, right? Well…
What if you made the offer contingent upon the completion of certain activities that are scheduled to occur before the first day of work, such as at a new hire event or orientation? What if those activities include completing a Form I-9, taking a badge photo, conducting a background check, watching a welcome presentation, and completing a drug test? And, what if those activities took less than two hours to complete? Do these activities constitute “work” for which the new hire must be paid? The question in this case was, “whether [under California state law] an employment relationship existed between the parties at the time of the new hire events.”
The short answer was “Yes” and “No.” The court found that some activities did constitute work for which the new hire must be paid (taking a photograph and watching a video) and some did not (drug testing, initiation of a background check and completion of the Form I-9). The court found the latter activities to be part of the application process. The former activities, however, were determined to be necessary only for employees, not applicants. “Simply by advancing the required activity to before the new hire’s first day of work” does not absolve the employer of paying for compensable time.
What the risk? This case involves WAY MORE than just one new hire and over the last SEVEN YEARS!! The court granted the Plaintiff’s motion to certify an entire class of plaintiffs including: “All individuals who (1) applied for an hourly, non-exempt job position with Defendant…; (2) received an offer letter from [Defendant] for an hourly, non-exempt position in one of [Defendant’s] warehouses, distribution centers, and fulfillment centers in the State of California; and (3) attended a standard in-person or hybrid new hire event at any time from July 14, 2018, to the present (the “Class” or “Class Members”) and completed either the badge photo or welcome presentation activities.”
Granted, this case was decided under California law. It is also a great reminder to review your “pre-employment” or onboarding activities. Which are truly tied to the application and/or selection process, and which are relevant only if the individual becomes employed with you? Talk to your company’s legal counsel. Consider whether the latter activities should be paid under your states’ wage and hour laws, as well as the Fair Labor Standards Act (FLSA).
