It is a fact of life for some entering the labour
market – the unpaid internship. For young workers,
it is an opportunity to gain experience in a desired field.
For employers, it is an opportunity to have recent graduates
perform necessary work or apprenticeship at less cost all while
assessing suitability for continued employment. Perhaps the modern
internship is best explained by the following:
With the attention that "interning" has been
getting in the media, including by Hollywood (see above) and by the
recent HootSuite controversy, the Ontario Ministry of
Labour ("MOL") has taken notice and issued a recent policy statement that clarifies both the
MOL's position and that many intern relationships will not be
considered as such by the MOL.
What is an Intern?
In order for someone to be a true intern, and not an employee
under the Employment Standards Act, 2000
("ESA"), the individual must be receiving training from
an employer in a skill used by the employer's employees. In
addition, all of the following conditions must be
The training is similar to that which is given in a vocational
The training is for the benefit of the intern.
The employer derives little, if any, benefit from the
activity of the intern while he/she is being trained.
The individual does not take someone else's job.
The individual is not being promised a job at the end of
The individual has been told that he/she will not be paid.
In addition, because the ESA does not apply to individuals who
perform work under a program approved by a college or university,
such individuals can properly be classified as interns and not
While the MOL's position does not change the law, it is
important for employers to note the MOL's increased focus on these
types of issues (and with young workers in general). In industries
with young workers or where it is common to have unpaid staff
classified as "temps", "interns" and
"volunteers", the MOL is much more likely (whether
through an audit or a staff complaint) to closely scrutinize this
issue and issue orders for breaches of the ESA. A finding of
employment by the MOL could result in an order to pay minimum wage,
vacation pay, holiday pay, etc. that the individual should have
received had he/she been properly classified as an employee under
In addition, for unionized employers, interns may be found to be
employees under a collective agreement by an arbitrator thus
entitling such individuals to the benefits of the collective
Given the consequences of an adverse finding and the potential
liability, employers should carefully review their arrangements
with interns with a view to minimizing the risk of such staff being
classified by the MOL or an arbitrator as employees. The MOL's
policy statement is a good place to
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).