With each summer comes a wave of students on break and new graduates all looking for a way to gain career experience. This summer, graduation time has coincided with the media spotlight being focused on the nature of unpaid internships in the U.S. and Canada. It is therefore probably a good time for employers with some sort of internship program to reassess whether what seems like free labour is actually a liability in disguise.
Employers are familiar with minimum wage requirements. Most equal or exceed these rates for regular employees who require on-the-job training. However, when it comes to engaging people who are willing to work for free just to get experience, all thoughts of employment standards can sometimes go out the window.
Each provincial and federal government has standards for minimum wages, hours of work, overtime and other basic employment conditions, but only a few provide express guidance on whether these standards apply to interns. Much of the employment standards legislation in Canada is ambiguous in this regard. Statutes that define employees by reference to the performance of work and an entitlement to wages (such as Quebec, Saskatchewan and Alberta) are of little assistance when the question is who is entitled in the first place. In the case of employers under federal jurisdiction, such as banks and broadcasters, no definition of who counts as an employee for minimum wage purposes is provided.
In British Columbia, on the other hand, some of this ambiguity has been alleviated by the government’s publishing of an Interpretation Guidelines Manual. Its definition of work excludes practicums that are performed as part of a degree program. Persons on a practicum can be unpaid; other interns must be paid.
In a couple of provinces, the minimum wage regulations apply only to persons who are paid wages. This seems to exclude unpaid workers in Prince Edward Island and New Brunswick. Elsewhere—such as in Newfoundland and Labrador, Manitoba and Nova Scotia—employees are defined by the fact that they provide services or are under a contract of services. That approach leaves little, if any, room for employers to deny an obligation to pay interns.
In Ontario, the employment standards law provides us with detailed guidance. It is based on the interpretation given the Fair Labor Standards Act by the U.S. Supreme Court. Under Ontario’s Employment Standards Act, 2000, a person will not be considered an employee during a training period where all of the following are true:
- the training is similar to that which is given in a vocational school;
- the training is for the benefit of the individual;
- the person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained;
- the individual does not displace employees of the person providing the training;
- the individual is not accorded a right to become an employee of the person providing the training; and
- the individual is advised that he or she will receive no remuneration for the time that he or she spends in training.
Despite these criteria, in Ontario, as in the U.S., the practices of interns and employers do not necessarily match up to the requirements.
Businesses offering internships in Canada would do well to check how their program measures up. If an intern should be considered an employee, more minimum standards than just wages would apply.
Now that this topic has caught the attention of some political parties, perhaps governments will provide some further guidance to let businesses know when they can legitimately use unpaid interns. The downside is that the attention being given to the subject could lead to a rise in claims by ex-interns and investigations by government agencies of internship programs that were thought to be legitimate. Employers that want to mitigate against claims for backpay, potentially significant fines and bad press may want to take this opportunity to ask whether they can afford not to pay their interns.
Julia Kennedy is an associate in Fasken Martineau’s Ottawa office. This article was republished from the e-bulletin, H R Space, with the permission of the law firm Fasken Martineau DuMoulin, LLP, as well as the publishers of Northern Exposure, a blog written by the law firm’s lawyers. Northern Exposure is produced in conjunction with HRHero.com. You can read more Northern Exposure blog posts at blogs.hrhero.com/northernexposure. You can learn more about it and its publications such as H R Space at Fasken.com.