On September 30, 2014, the Ontario Ministry of Labour (the
"Ministry") published the results of an internship
inspection blitz that it ran from April 1 to June 15, 2014. During
the inspection blitz, employment standards officers visited
workplaces in the Greater Toronto Area in sectors known to employ a
high proportion of interns, including advertising, public
relations, computer systems design, consulting services and
information services. They checked for contraventions of the
Ontario Employment Standards Act, 2000 ("ESA"),
and in particular whether unpaid interns were present and whether
they were entitled to be paid under the ESA.
As we have previously reported in this newsletter, the ESA
considers some interns to be employees (and therefore entitled to
the protections under the ESA), if they are trained in a skill that
is used by the employer's other employees. Interns will be
exempt from the ESA protections only if all of the following six
(6) conditions are met:
The training is similar to that provided in a vocational
The training is for the benefit of the trainee (i.e., not the
The employer derives little, if any, benefit from the
The trainee does not displace other employees in the
The trainee is not accorded a right to become an employee of
the employer; and
The trainee is advised that he or she will not be paid for the
time spent in training.
The ESA also contains exemptions for certain types of interns,
including a secondary school student who performs work under a work
experience program authorized by the school board, and 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.)
During the blitz referenced above, the Ministry conducted 56
inspections. It found that 13 of these employers had internship
programs with ESA contraventions. As a result, the Ministry issued
36 Compliance Orders and 1 Order to Pay Wages (there were
additional monetary violations found, but in all but a single case,
the employer voluntarily complied and there was no need to issue an
Order to Pay Wages). In total, the Ministry assessed $48,543 owing,
which has apparently all been recovered. The most common monetary
violations pertained to minimum wage, vacation pay, and public
holiday pay. The most common non-monetary violations pertained to
wage statements, record keeping, and hours of work.
The blitz was generally viewed as exposing the fact that
widespread violations continue to exist with respect to unpaid
interns, despite previous rounds of inspections in 2014 and
negative media attention regarding such programs. In addition to
its various blitzes, the Ministry has been reaching out to interns
via social media and encouraging them to come forward with any
concerns. Consequently, we expect to see further/ongoing attention
to this particular issue.
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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