Ask the Experts: Interns, Whistleblowing & Injuries

On May 16, 2024

In the latest installment of New Jersey Business Magazine’s Ask the Experts column, HR professionals working with the New Jersey Business & Industry Association respond to executives’ inquiries on three interesting workplace issues:

Do we need to pay summer interns?

Generally, yes, though it depends on who benefits most from their work.

The U.S. Department of Labor (DOL) has adopted the “primary beneficiary test” to determine whether a worker is an employee (who must be paid in accordance with federal wage and hour law) or can be classified as an unpaid intern (a non-employee who is exempt from federal wage and hour law). If the worker is the primary beneficiary of the arrangement – as opposed to the employer – they can be classified as an unpaid intern. If the employer is the primary beneficiary, the worker must be classified as an employee and must be paid minimum wage and overtime under the Fair Labor Standards Act.

According to the DOL, the test is flexible, and no single factor will necessarily tip the scales. As a practical matter, if having summer interns is saving your company money or the interns aren’t receiving some kind of academic credit, you should think very hard about classifying them as non-employees.

If you’re not sure whether the worker should be classified as an unpaid intern or paid employee, the safer option would be to classify them as an employee. Misclassification can be costly. As is always the case, you should check state law for any additional requirements.

A remote employee told us they were injured at home during their workday. What are our responsibilities?

When an employee informs you that they were injured while working from home, take the claim seriously and follow your usual procedure for a workplace injury. Here are the steps we recommend:

• Thank them for letting you know about the injury and ask if they need medical attention. If necessary, help them get it. Their health and safety should be your first priority.
• Have the employee complete a workers’ compensation claim form, which can be obtained from your carrier. The carrier should be notified as soon as possible.
• Check for any recordkeeping or reporting requirements that you may be subject to under OSHA.
• Keep a copy of the employee’s claim form and any other supporting documentation.
• Talk to the employee about what happened to determine if there is a way you can help prevent this kind of injury in the future.

What are whistleblower protections?

Whistleblowing occurs when an employee reports wrongdoing (dangerous, illegal, or unethical activity or practices by the company or its employees) either directly to the employer or to an outside authority. Many laws, including the Occupational Safety and Health Act, consider whistleblowing a protected activity, meaning you can’t lawfully retaliate against an employee for making such a report. 

You can reduce the risk of employees “blowing the whistle” to an outside agency or authority by: establishing clear internal channels for employees to report issues; addressing these reports promptly and fairly; and having zero tolerance for retaliation. Employees should feel safe bringing concerns to your attention and be able to trust that you’ll respond appropriately.

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