Question:  We want to hire a summer intern.  Do we have to pay them?

Answer: In most “for profit” businesses, the answer is generally “yes.”  The Department of Labor (DOL) released Fact Sheet #71 in January of 2018 which explains that the “primary beneficiary test” should be used to determine whether an intern or student is an employee and should be paid.  If you are considering using unpaid interns you should carefully evaluate the work the interns are performing and analyze each of the seven factors as part of the primary beneficiary test.  If the employer benefits more than the unpaid intern, the individual should be treated as an employee. 

The seven factors are listed below:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Question: When an employee is out on an extended medical leave due to a work injury, do they continue to accrue vacation?

Answer: There is no legal requirement to provide vacation benefits to employees.  If you do offer vacation benefits to employees, you are not required to continue vacation accrual during an unpaid leave of absence.  (However, if you continue vacation accrual during non-workers’ compensation related medical leaves, you must follow the same practice for employees on a medical leave due to a work-related injury.)

If you have a medical leave policy, it should specify how long vacation will continue to accrue during the leave.  If your policy does not have provisions regarding vacation accrual, you should rely on your past practice.  It is typical to continue vacation accrual during the paid portion of leaves only.

Question: We require our employees to wear a company polo shirt at work.  Can we provide one shirt per year and have employees pay for a new shirt if it starts looking worn or is damaged during the year? Also, do we have to pay for the maintenance of the shirts?

Answer:  Section 9 of the Industrial Wage Orders states:

UNIFORMS AND EQUIPMENT (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term uniform includes wearing apparel and accessories of distinctive design or color.

Employers are not permitted to charge employees for shirts or for replacement shirts when the first one wears out or is damaged.  Additionally, if an employee works more than one shift per week the employer should consider providing one shirt for each day the employee is scheduled to work in a workweek.

Employers must continue to maintain uniforms that require daily, special, or other routine laundering due to heavy soiling or use, and uniforms requiring ironing, dry cleaning or repairs.