Do I have to pay interns? Are unpaid interns legal in
These are just some of the questions asked by many as the topic
of unpaid interns has recently been a hot issue in Ontario. The
problem with the current Ontario legislation is that it leaves
those working in unpaid internships vulnerable, specifically:
While it is legal to employ unpaid interns, many unpaid
internship positions do not meet the legislative requirements and
are actually illegal. Some workers should actually be receiving
minimum wage for the work performed; and
Unpaid interns are not covered by The Occupational Health and Safety
legislation which requires an employer to tell workers that they
have the right to refuse unsafe work. The OHSA defines a
"worker" as a "person who performs work or supplies
services for monetary compensation".
Unpaid Interns and the Employment Standards Act, 2000
Under the Employment Standards Act,
"employees" must be paid at least Ontario's minimum
wage. A person being trained by the employer is considered to be an
"employee" unless, the internship is part of a program
approved by a college or university or all of the following
The training is similar to that which is given in a vocational
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
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
If a worker is part of a program approved by a college or
university or the worker's position meets one of the 6
requirements under section 1(2) of the ESA, the employer is not
required to pay the worker minimum wage.
However, some might argue that it is rare for a position to be
for the benefit of the individual, where the employer will derive
little benefit from the position. Many positions designated as
unpaid internship may not actually qualify under the stringent
requirements of the ESA and as such, are illegal positions.
The Occupational Health and Safety Act
The issue with the OHSA is being addressed by Bill 146, An
Act to amend various statutes with respect to employment and
labour, whichwas introduced by the Ontario government in early
December 2013. The goal of this bill is to increase protection for
employees and workers in Ontario. With all the recent attention
surrounding unpaid interns and protection of vulnerable workers, it
comes as no surprise that the bill proposes to expand the
definition of "worker" in the OHSA to include:
A secondary school student who performs work or supplies
services for no monetary compensation under a work experience
program authorized by the school board;
A person who performs work or supplies services for no monetary
compensation under a program approved by a college of applied arts
and technology, university or other post-secondary institution;
A person who receives training from an employer, but who, under
the ESA, is not an employee for the purposes of that Act because
the conditions set out in subsection 1 (2) of that ESA (as set out
below) have been met.
If this bill passes it will address the issue of unpaid interns
and safe work environments, but still leaves open the issue of
illegal unpaid intern positions.
Caution to Employers
With all the current focus on unpaid internships and protecting
young and vulnerable workers, employers need to be cautious when
hiring for unpaid internship positions that are not part of a
program approved by a college or university. Employers need to
ensure that the position meets the 6 requirements of the ESA and if
it does not, employers need to satisfy Ontario's minimum wage
1 RSO 1990, c O.1.
2 SO 2000, c 41
3 Employment Standards Act, 2000, c. 41,
s. 1 (2).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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