While most employers are aware of their responsibilities to employees under Ontario’s Employment Standards Act, 2000 (“ESA”), many believe –or perhaps hope—that they have no legal obligations toward workers if they are called “interns”. A 2014 inspection blitz by the Ontario Ministry of Labour found that the majority of the companies investigated were in violation of the ESA with respect to their use of unpaid interns.
Under Ontario law, a person who works for another person or organization is entitled to the rights and protections of the ESA, including the right to earn a minimum hourly wage. As a general rule, this means that unpaid internships are in fact illegal, unless the internship falls under one of the three narrowly construed exemptions listed in the ESA:
- Internships that are part of a program approved by a secondary school board, college, or university;
- Internships that provide training for certain enumerated professions, including architecture, law, public accounting, veterinary science, dentistry, and optometry; and,
- Internships that meet all of the six conditions required for the intern to be considered a “trainee”, namely: (i) the training is similar to that which is given in a vocational school, (ii) the training is for the benefit of the individual, (iii) the person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained, (iv) the individual does not displace employees of the person providing the training, (v) the individual is not accorded a right to become an employee of the person providing the training, and (vi) the individual is advised that he or she will receive no remuneration for the time that he or she spends in training.
In all other instances, interns fall within the broad definition of “employee” under the ESA, and are accordingly, entitled to the minimum standards under the ESA, including hours of work, minimum wage, overtime pay, and vacation pay.
The fact that a worker is called an “intern” is irrelevant to the determination of whether that worker is entitled to the protections of the ESA.
Most employers who engage interns—particularly those who rely on students to meet seasonal demands during their summer holidays—fall short at the third exemption. Since the definition of employee in the ESA includes, “a person who receives training from a person who is an employer”, the six conditions listed above will rarely be satisfied by an employer who does not take on an intern under a program approved by an educational institution.
Lessons for Employers
Employers who offer internships that are not approved by an educational institution should review their programs and practices to ensure that they are meeting their legal obligations under the ESA. While employers are entitled to define a temporary, entry-level position as an “internship”, they should be aware that this label is meaningless from a legal prospective and that interns may very well be entitled to the same ESA protections as their other employees.
Moreover, even if an internship falls under one of the exemptions listed in the ESA, it is still advisable that employers follow some of the ESA’s minimum requirements, such as ensuring that interns are not working more than forty-four hours per week or on statutory holidays. Employers should always treat all workers –paid or not—with fairness and dignity.
Lessons for Employees
It is also important to remember that an employee cannot waive his or her rights under the ESA. A worker should not feel pressured to accept a position without pay even if the position is a temporary, entry-level position labelled as an “internship”. When faced with such an opportunity the worker should first obtain legal advice to determine whether they are in fact an “employee” under the ESA. Even if an employee agrees to be paid less than the minimum wage or not be paid at all, an employer will still be liable for breaching the ESA and could face significant penalties.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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