The Ontario Ministry of Labour has recently been cracking down on unpaid internships at magazines, prompting the publishers at Toronto Life and The Walrus to shut down their programs. As summer approaches and post-secondary students begin their hunt for relevant work experience, is worth reviewing the rules around whether and when people receiving training must be paid for their labours.
The Ontario Employment Standards Act, 2000 (the "ESA") makes no reference, anywhere, to "interns". Instead, the ESA refers to "a person receiving training". Some trainees are considered to be employees (and therefore covered by, and entitled to the protections in, the ESA), and some are not. In order to be considered an employee, a trainee must be trained in a skill that is used by the employer's other employees. However, a trainee who is trained in a skill that is used by the employer's other employees will not be covered by, or entitled to the protections in, the ESA, if all of the following six conditions are met:
1. The training is similar to that provided in a vocational school.
2. The training is for the benefit of the trainee (i.e., not the employer).
3. The employer derives little, if any, benefit from the trainee's activities.
4. The trainee does not displace other employees in the workplace.
5. The trainee is not accorded a right to become an employee of the employer.
6. The trainee is advised that he or she will not be paid for the time spent in training.
It doesn't matter whether the trainee agreed to work as an unpaid intern, has signed an agreement indicating that he or she would work as an unpaid intern, or did not attempt to negotiate for monetary compensation. If the trainee is being trained in a skill used by the employer's other employees, and one or more of the six conditions in the above list is not met, then the trainee must be paid at least minimum wage, and will enjoy all of the other protections in the ESA, including those pertaining to hours of work, overtime pay, paid vacations, public holidays, leaves of absence, termination and severance pay, etc.
It should also be noted that the ESA also contains exemptions for certain, specific types of trainees, including:
1. a secondary school student who performs workunder a work experience program authorized by the school board; and
2. an individual who performs work under a program approved by a college of applied arts and technology or a university.
Furthermore, students in training to become certain professionals (including in architecture, law, professional engineering, public accounting, surveying, veterinary science, chiropody, chiropractic, dentistry, massage therapy, medicine, optometry, pharmacy, physiotherapy, psychology, and naturopathy, or teaching as defined in the Teaching Profession Act) are exempt from the minimum wage, hours of work, overtime pay, paid vacations and public holiday provisions of the ESA. Most of these professions have some type of work experience or apprenticeship requirement that must be completed before a person can qualify to practise the profession, and such work experience is often mandated by the profession's governing statute. This exemption will not apply merely because a student who is studying this subject area at a university or college is seeking employment.
If you would like assistance determining whether unpaid interns at your organization should be paid and/or receive other protections outlined in the ESA, please contact a member of the BLG labour and employment law group.
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.
