Almost every ‘unpaid internship’ that is not affiliated with an educational institution is unlawful in Ontario.
That simple statement seems to baffle a lot of HRM folks and companies who use unpaid internships. I’m not sure why. We should assume that if people do work for a business, they should be paid for it. Yet there seems to be a belief that by calling someone an ‘intern’, an employer can magically avoid all of the employment laws put in place to protect workers under our laws. In our law, there is no such thing as an unpaid intern. Intern appears no where in the Employment Standards Act. It is a term made up by employers. You begin from the assumption that someone who comes to work, and performs work, is entitled to be paid for that work.
I’ve written about this many times before, so I don’t want to review all of the legal principles again. Here is my review of the Ontario law that governs unpaid work from nearly 3 years ago. The issue is attracting greater attention today, owing to a resistance movement against ‘unpaid internships’, and the government’s own recent promotion of the fact that the practice is almost always a breach of the Employment Standards Act.
And yet, businesses continue to break the law, suggesting the message is not getting through. Check out this ad, sent to me by a reader:
Editorial Interns (multiple)
Promotive Communications Inc.
Location: Aurora/Ottawa, Ontario
Posted: May 7, 2013
Salary: $500 honorarium
DescriptionITinCanada, Canadian Government Executive, Biotechnology Focus, Laboratory Focus and Vanguard media properties are now accepting applications in our Aurora and Ottawa, Ontario locations.
We are a media publishing firm that services the information technology, government, life science, laboratory, and defence markets. This is a full-time position from Monday-Friday between 9 a.m. and 5 p.m. We offer a $500 honorarium per internship. There is a possible opportunity for full-time employment for the right candidate(s) after the internship term.
The candidate must have strong research, interviewing, writing and social media skills and be able to meet deadlines. Candidates should have a good grasp of CP Style, and some form of post-secondary journalism training at the college or university level. This position offers plenty of hands-on experience, with opportunities for published articles.
Sometimes it’s difficult to tell from a job description in an ad whether an ‘internship’ job will be unlawful, because the conditions aren’t set out in detail. That’s not the case here, if we assume that this company is governed by Ontario law, at least. You know that these jobs will be unlawful by the time you get to the “Salary” 4 lines into the ad: ”$500 honorarium.” Section 1(2) of the ESA tells us that someone receiving training is an ‘employee’ unless the employer tells the person that they “will receive no remuneration for the time he or she spends in training”. If this isn’t clear enough, keep reading the ad: There is a possible opportunity for full-time employment for the right candidate(s) after the internship term. Section 1(2) of the ESA also tells us that a person is an employee if she is “accorded a right to become an employee of the person providing the training.” Boom.
A full-time job paying $500 total! Ridiculous. And illegal. The government says that the laws are already in place to stop this practice, which in theory is true. However, the law is failing. Employers ignore it, and the government lacks the will or capacity to police the legislation. Part of the problem is that the law is difficult to find and read. It doesn’t say that unpaid internships are unlawful. Instead, it provides a somewhat confusing and ambiguous definition of an ‘employee’ that creates room for disagreement. It then places the onus on the employee to learn the law and to challenge the employer by filing a legal complaint. Since an important reason to accept an unpaid internship is to obtain useful job references, few employees will bother to complain. This creates the perfect storm for systemic abuse of the law.
What would you do to fix the problem?
One answer is to amend the law to remove: (1) subsection (c) of the definition of ‘employee’ in Section 1(1), which says that an “employee” includes “(c) a person who receives training from a person who is an employer, as set out in subsection (2)“; and (2) subsection 2(2), which explains when a person receiving training is an ‘employee’. These two clauses together create an exception from the ESA for work that is similar to a training program from an educational institution, but that is not actually affiliated with an educational program.
The result of removing these two clauses would be that only training programs officially linked to a university or college program would be exempted from the ESA. Thus, if a media company like the one posting the illegal internships above wants to use ‘interns’, it will need to hook up with an educational institution that offers a coop program in journalism or writing. We would be left with Section 3(5)2, which says that a person is not an ‘employee’ covered by the ESA who, “ performs work under a program approved by a college of applied arts and technology or a university.”
I actually like that idea. It has the benefit of simplifying the law. Since the purpose of the law is to allow and encourage vocational training opportunities, why not just require the program to be linked to a vocational training institution. The worker is not paid for the work, but they are receiving educational credit, and the educational institution can help police the work to ensure the students are not being mistreated.
Another option is to require employers to obtain a government permit to use unpaid workers after a process in which the worker is explained the law. That would require a check on the system, and would educate both workers and employers about the legal issues.
Issues for Discussion
There are other possibilities for reform. What do you think about the proposals I’ve suggested? What other proposals would you suggest?
A challenge for the law is distinguish unpaid work that should be treated as employment, and unpaid ‘volunteer’ work which the state wants to encourage. For example, should we require the Ontario Cancer Society to treat all volunteers as employees, and pay them minimum wage, overtime pay, and give them paid holidays? A company might encourage its employees to volunteer for a local food bank. Should the law treat that work as ‘employment’ requiring wages, and benefits, et cetera? That might discourage important volunteer work. How can a legal rule ban unpaid ‘intern’ work, but still permit ‘volunteer work’ that benefits society?