Alex is Sprintlaw's co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
Hiring can feel like a gamble, especially when you’re running a small business and every wage dollar counts. You want to know whether someone can actually do the job, fit your team, and handle the pace before you commit.
That’s where the idea of an unpaid trial shift often comes up - a “quick shift” to see how they go.
But in New Zealand, unpaid trial shifts are one of those areas where the practical business instinct (“let’s test them out”) can clash with employment law. And if you get it wrong, the costs can add up quickly - wage arrears, penalties, and disputes that drain your time and reputation.
Below, we’ll walk through what an unpaid trial shift usually means, when it’s likely to be unlawful, and what you can do instead to assess candidates while keeping your business protected from day one.
What Is An “Unpaid Trial Shift” (And Why Do Employers Use Them)?
An unpaid trial shift is usually a short period of work (often a few hours, sometimes a full shift) where a candidate comes in and performs tasks in your business without being paid. The goal is typically to test:
- practical skills (e.g. coffee-making, food prep, customer service, machine operation)
- speed and accuracy
- attitude and communication
- team fit
These trial shifts are common in hospitality, retail, trades, cleaning, warehousing, and other hands-on roles - especially where CVs and interviews don’t tell you much about real-world performance.
The legal issue is that, in many cases, what feels like a “trial” is actually work. And if it’s work, it generally needs to be paid.
Why This Matters
If a candidate is effectively working as part of your business, and you’re benefiting from what they do (even a little), an unpaid trial shift can create exposure under wage and employment laws. It can also create evidence that an employment relationship started earlier than you thought.
Are Unpaid Trial Shifts Legal In New Zealand?
In most real-world situations, an unpaid trial shift is high-risk in New Zealand.
New Zealand employment law doesn’t give employers a broad right to “try before you buy” without pay. If someone is performing work and you’re directing them, supervising them, or integrating them into your business operations, it can look a lot like an employment relationship - even if you call it a “trial”.
The General Rule: If It’s Work, It Should Be Paid
While each situation turns on its facts, here’s the practical guideline: if the person is doing tasks that are part of the role (or part of your normal operations), and you receive a benefit, you should assume it must be paid at least at the minimum wage.
Key laws and obligations that tend to come into play include:
- Minimum Wage Act 1983 (minimum wage obligations)
- Employment Relations Act 2000 (employment relationships and good faith obligations)
- Wages Protection Act 1983 (rules around payment of wages and deductions)
- Health and Safety at Work Act 2015 (you still have duties to keep people safe at your workplace)
Even if you think the “trial” is short, or the candidate “agreed” to do it unpaid, that agreement may not protect you if the arrangement is inconsistent with minimum employment standards.
So Is There Ever A Situation Where An Unpaid Trial Shift Might Be OK?
There are limited situations where a short, genuinely observational or skills-demonstration activity might be lawful without pay - for example, where it is:
- very short (think minutes, not hours)
- clearly an assessment rather than productive work
- closely supervised and not replacing a rostered worker
- not providing value to the business (i.e. you’re not “getting work done”)
In practice, once the person is serving customers, producing saleable items, cleaning your premises, handling deliveries, or covering normal duties, it’s difficult to argue it’s not work.
If you’re considering any unpaid arrangement, it’s worth getting advice first - these situations are fact-specific, and “everyone does it” isn’t a legal defence.
What You Can Do Instead: Running A Compliant Paid Trial Shift
The good news is you can still assess someone properly - you just need to structure it in a compliant way.
A paid trial shift is often the cleanest option. It lets you see real performance while reducing legal risk.
Step-By-Step: How To Set Up A Paid Trial Shift
-
Be clear it’s a paid assessment
Put it in writing that the purpose is to assess suitability and that they will be paid for all hours worked. -
Confirm the hourly rate (minimum wage or above)
If you’re unsure what rate applies, start with at least the legal minimum and check whether any collective agreement terms apply to your workplace (if relevant). -
Keep the shift genuinely short and relevant
A short paid shift (e.g. 2–4 hours) is often enough to assess core competencies without effectively “hiring” someone for a full week. -
Track time properly
Keep accurate time records. If there’s a later dispute, your records matter. -
Address health and safety upfront
Do a basic induction: hazards, emergency procedures, safe equipment use, PPE, and who to ask for help. -
Decide quickly and communicate the outcome
If you’re not proceeding, let the person know as soon as possible and pay them promptly for the trial hours worked.
If you want the arrangement to sit within a broader hiring process, you can prepare an Employment Contract that clearly sets expectations around pay, duties, and any probation or trial-period mechanisms (where lawful and applicable).
Can You Pay A Flat Amount Instead Of Hourly?
Be careful with flat “trial fees”. If the person is working a shift, you should ensure the payment still equals or exceeds what they’d receive at minimum wage for the time worked, and that the arrangement is recorded properly.
Trial Periods Vs Trial Shifts: Don’t Mix These Up
A common trap is assuming that a “trial shift” is the same thing as a legal trial period. They’re different concepts.
What Is A Trial Period?
A trial period is a formal arrangement at the start of employment where, if it meets legal requirements, an employer may be able to terminate the employee within the trial period using the trial provision (subject to compliance with the rules around trial periods).
Trial periods are technical and need to be implemented correctly. In particular, 90-day trial periods have strict legal requirements (including that they must be agreed in writing and in the employment agreement before the employee starts work), and they’re not available for every employer in every situation.
What Is A Trial Shift?
A trial shift is generally an assessment activity before (or at the very start of) employment. If that “trial” involves real work, it’s often safest to treat it as paid work.
From a business owner’s perspective, the key takeaway is: if you want an on-the-tools assessment, a short paid trial shift can make sense. If you want protection for the early employment stage, a properly drafted contract (and correct process) matters.
Common Employer Mistakes With Unpaid Trial Shifts (And How To Avoid Them)
Most small businesses don’t set out to do the wrong thing here. The issues usually come from unclear processes, informal hiring, and time pressure.
Here are common mistakes we see, and what to do instead.
1. Using The Trial Shift To Cover A Busy Service
If your “trial” is scheduled during your busiest time and the candidate is effectively filling a gap on the roster, it can look like you’re using unpaid labour.
Better approach: schedule a short paid assessment and assign tasks that demonstrate skill without relying on them to run your service.
2. Not Being Clear About Who Is Supervising (And What They’re Allowed To Do)
If you let the candidate operate unsupervised, handle cash, or serve customers independently, it strongly suggests productive work.
Better approach: keep supervision tight, document what the assessment involves, and ensure they’re paid.
3. Trying To Treat Them As A Contractor For “Just One Shift”
Sometimes businesses try to solve the problem by paying an invoice and calling it contracting. That can backfire if the person is really working like an employee (under your direction, using your tools, in your business).
Better approach: understand the difference between employment and contracting, and only use a contractor arrangement where it’s genuinely appropriate. If you do engage contractors, a tailored Contractors Agreement helps set expectations clearly.
You’ll also want to be comfortable with the legal distinction between contractor vs subcontractor style working arrangements so you’re not accidentally creating the wrong relationship.
4. Discriminatory Or Inconsistent Hiring Practices
If you only offer trial shifts to certain candidates (or you assess people differently), you can create risk under discrimination and good faith principles. The Human Rights Act 1993 and general employment law expectations matter here.
Better approach: use consistent criteria, train whoever runs the assessment, and document how decisions are made.
5. Forgetting Privacy Obligations During Recruitment
Trial shifts and recruitment often involve collecting personal information (ID details, bank details for payroll, reference checks, interview notes, sometimes CCTV footage). That information needs to be handled carefully under the Privacy Act 2020.
Better approach: have a Privacy Policy and ensure your internal process is clear about what you collect, why you collect it, where you store it, and who can access it.
What Documents And Policies Should You Have In Place?
Even if you’re only bringing someone in for a short paid assessment, the way you document and manage the process can make a big difference if a dispute arises later.
Depending on your business and role, consider having:
- Written confirmation of the paid trial shift (date, start/finish time, rate of pay, assessment purpose)
- Time and wage records (accurate and stored securely)
- Health and safety induction checklist (especially if they’ll be using equipment or working near hazards)
- Clear recruitment notes showing consistent assessment criteria
- An Employment Contract ready to issue if you decide to hire
- Workplace policies that set expectations for conduct, safety, and processes
A tailored Workplace Policy can help you keep hiring and onboarding consistent - which is especially useful when different managers run interviews or trial shifts.
What If It Doesn’t Work Out After The Trial?
This is where many businesses feel stuck - you’ve paid the trial shift, but you’ve realised the candidate isn’t right. That’s OK. The key is to communicate clearly, promptly, and respectfully, and to ensure wages are paid correctly.
If you’re ending employment (or deciding not to proceed) and you’re not sure what process applies, it’s worth getting advice early. Having the right documents ready can also reduce risk if the relationship has already started. Depending on the circumstances, Employee Termination Documents may be relevant if the person has moved beyond a mere assessment into employment.
Because the line between “candidate” and “employee” can get blurry in trial scenarios, getting the structure right upfront is one of the best ways to protect your business.
Key Takeaways
- In New Zealand, running an unpaid trial shift is legally risky when the candidate performs real work that benefits your business.
- If the person is effectively doing the job (even briefly), you should generally treat it as paid work and pay at least the minimum wage.
- A paid trial shift is often the simplest way to assess skills while reducing the risk of wage claims and disputes.
- Don’t confuse trial shifts with formal trial periods - they’re different legal concepts and need different documentation.
- Even during recruitment and trial assessments, you still have obligations around health and safety and privacy.
- Having the right documents in place (written trial confirmation, time records, policies, and an Employment Contract) helps protect you from day one.
If you’d like help setting up a compliant hiring process (including paid trial shifts, contracts, and workplace policies), you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.
