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 school;
- The training is for the benefit of the trainee (i.e., not the employer);
- The employer derives little, if any, benefit from the trainee's activities;
- The trainee does not displace other employees in the workplace;
- 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.
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