Internships have become a sensitive legal topic since the 2008 recession sent the economy into tumult, spurring record job losses and forcing desperate job seekers to try any advantage to get back into the workforce.
From the employer’s perspective internships are generally free sources of short-term labour that offer the employee experience and connections. Critics of the practice say it’s exploitation, usually of young people trying to get a toehold in the workforce.
Even if the employee consents to be hired as an intern, it is not enough to protect the employer from possible legal action down the road. Penalties can range from fines, obligations to pay back wages and a heap of negative publicity. Under the Canada Labour Code, any complaints involving unpaid wages, overtime and vacation pay filed against a federally-regulated employer will prompt an investigation. Most cases, however, fall under provincial employment laws.
Here are some things you should know before you agree to work for free:
1. In most cases it’s illegal to work for free. The exceptions are if you’re a student, or if it’s for training purposes. In the latter case, Ontario won’t recognize it as “training” unless all of the following conditions are met (according to the Ministry of Labour):
- the training is similar to that which is given in a vocational school;
- the training is for the benefit of the intern. You receive some benefit from the training, such as new knowledge or skills;
- the employer derives little, if any, benefit from the activity of the intern while he or she is being trained;
- your training doesn't take someone else's job;
- your employer isn't promising you a job at the end of your training;
- you have been told that you will not be paid for your time.
2. The internship will usually be deemed legally valid in Ontario if it is filled by a person who “performs work under a program approved by a college of applied arts and technology or a university.” Some provinces, like British Columbia, define this type of job as a “practicum,” which is not considered work and as such does not require remuneration.
3. Each province has its own set of labour laws that protect all employees of that region by guaranteeing them a set of minimum benefits and standards such as minimum wage and a safe work environment. British Columbia’s Employment Standards Act defines an “employee” as “a person an employer allows, directly or indirectly, to perform work normally performed by an employee” and “a person being trained by an employer for the employer's business.” If an intern fell under either definition, he or she would be considered an employee and be entitled to minimum wage, regardless of whether the person consented to work for free.
4. In Quebec, an unpaid intern is commonly called a “stagiaire” and is not an employee, which is defined by the province’s Labour Standards Act as someone who:
- undertakes to perform specified work for a person within the scope and in accordance with the methods and means determined by that person.
- undertakes to furnish, for the carrying out of the contract, the material, equipment, raw materials or merchandise chosen by that person and to use them in the manner indicated by him or he- keeps, as remuneration, the amount remaining to him or her from the sum he has received in conformity with the contract, after deducting the expenses entailed in the performance of that contract.
- keeps, as remuneration, the amount remaining to him or her from the sum he has received in conformity with the contract, after deducting the expenses entailed in the performance of that contract
5. The employment laws in Alberta, Saskatchewan, New Brunswick and Prince Edward Island are somewhat vague in regards to whether unpaid interns are considered employees and entitled to minimum wage. These provinces generally define an employee as a person who receives wages or remuneration for labour or services performed. Manitoba, Nova Scotia and Newfoundland & Labrador generally define employees, not as people who are paid, but as people who are employed to do work.
6. If you or someone you know is unsure whether or not your internship qualifies you as an employee under your province’s employment laws, you should contact your provincial or territorial Ministry of Labour.
What is the law? Canadian Intern Association
Are Unpaid Internships Legal in Ontario?