Recently, the Ontario Ministry of Labour released the results of its recent internship inspection
blitz, revealing that many internship programs violated the
Employment Standards Act, 2000 (the "ESA"). In this
blitz, the Ministry targeted the advertising, public relations,
computer systems design, consulting services and information
services industries, among others. The Ministry found 31 employers
with internship programs, of which 13 were violating the ESA.
The most common violations included:
failure to pay employees the minimum
failure to pay vacation pay
failure to pay public holiday
Altogether, the Ministry issued 37 orders, including a total of
$48,543 in back pay for those interns who the Ministry deemed were
"employees" under the ESA.
These results point to the need for employers to carefully
consider whether their "interns" will actually be viewed
as "employees" under the ESA. As the Ministry warned in a
2011 publication, just because someone is labeled an
"intern" does not mean that an employer can hire that
person without compensating him/her like any other employee. Last
April, Jeff Mitchell and Virginie Dandurand wrote a
post explaining the limited scenarios in which an employer can
hire someone to perform work without providing the minimum
standards of compensation required by the (Ontario) ESA and the
Québec Act respecting Labour Standards.
Employment standards are not the only area where unpaid interns
are receiving attention in Ontario. Bill 18 (a.k.a. the Stronger
Workplaces for a Stronger Economy Act), which would give interns in
Ontario protection under the Occupational Health and Safety Act, is
already in the process of being passed by the Ontario government.
As well, one private member's bill has proposed requiring that
employers post their interns' rights as employees and creating
a new complaints system. So far, there is no legislation being
tabled in Ontario to modify or repeal the existing statutory
exception that legalizes certain unpaid internships. Nevertheless,
the results of this blitz demonstrate that employers offering
unpaid internships would be well advised to ensure that they meet
the narrow criteria established by the province.
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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.
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