Lately, unpaid interns have been on the Ministry of Labour's
radar. In June 2013 a policy statement was published which reminded
employers that most unpaid internships run afoul of the
Employment Standards Act, 2000 ("ESA"). I
wrote about this policy statement in a previous
In April 2014, arising out of a few
high profile incidents involving the Walrus and
Toronto Life magazine, the Ministry announced an
enforcement "blitz" meant to determine whether unpaid
interns in certain sectors of the economy were truly
"interns" and therefore exempt from the ESA. The
results of that "blitz" have now been published. Some of the notable
The following sectors of the economy
were targeted: advertising, public relations, computer systems
design, consulting services and information services.
The Ministry issued 37 orders to
employers in those sectors.
The Ministry recovered $48,543 from employers on behalf
of individuals found to be employees (not interns) under the
The amounts recovered were for minimum wage, vacation pay and
public holiday pay.
The findings substantiate that many interns are
misclassified. The Ministry will likely consider
them as employees. As employees, these individuals are
entitled to the protections of the ESA, including payment of the
minimum wage and vacation pay. Employers will be ordered to
pay these amounts.
The Government is in the process of legislating protections for
interns. Most notably, Bill 18, the Stronger Workplaces for a
Stronger Economy Act (previously summarized
here) would add interns to the definition of "worker"
under the Occupational Health and Safety Act.
Needless to say, this issue is not going away so employers need to
remain vigilant to ensure ESA compliance.
In this regard, it is worth a reminder
that the ESA will apply to most individuals in the workplace,
regardless of whether the person has the "intern"
title. There are really only two narrow exemptions.
First, the ESA does not apply to work performed under an internship
or co-op placement approved by a college of applied arts and
technology or a university. The second exemption applies where the
intern is a "person receiving training" and all of the
following conditions are met:
The training is similar to that which is given in a vocational
The training is for the benefit of the intern. The trainee must
receive some benefit from the training, such as new knowledge or
The person providing the training derives little, if any,
benefit from the activity of the intern;
The intern's training does not displace the employees of
the person providing the training;
The person providing the training must not promise the intern a
job at the end of his or her training; and
The intern has been advised that he or she will not be paid for
the time that he or she spends in training.
Most interns are unlikely to meet these
conditions (especially #3).
Accordingly, given the results of the
"blitz" and the Ministry's focus on the intern issue,
employers should review their practices and policies on using
unpaid labour and interns to ensure compliance. If an
employer finds that an intern does not fit within the above
exemptions, to reduce risk employers should consider a stipend
or other form of payment that, at least, meets the minimum
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
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