Like baseball or time at the lake, an unpaid internship is a
summer ritual for many young Canadians. Indeed, many
employers turn to unpaid volunteers, practicum students and interns
to bolster their workforce. While the attractiveness of
engaging young and motivated individuals for no cost is
understandable, employers should approach these unpaid positions
with caution. They could expose the employer to
liability. In many cases interns and volunteers could turn
out to be employees.
Unpaid positions usually fall into three categories: volunteers,
practicum students and interns. The British Columbia
Employment Standards Act (the "ESA") does not
define these terms. It does, however, define the term
"employee" broadly as including a person an employer
allows, directly or indirectly, to perform work normally performed
by an employee. It also defines "work" broadly as
labour or services an employee performs for an employer. The
characterization of any individual will depend upon the facts of
The Employment Standards Branch (the "Branch") treats
volunteers, practicum students and interns differently, as
Volunteers: The Branch applies a narrow definition.
They are persons who provide services for non-profit organizations
without expecting compensation. The Branch deems that in a
for-profit organization, any person allowed to perform work
normally done by employees is considered to be an employee, not a
volunteer. In deciding whether a volunteer is an employee,
the Branch will consider whether:
the individual expects, or was paid, compensation;
whether the individual performs the same duties as other
whether the employee works set hours; and
whether the individual is subject to the company's
Practicum Students: A practicum is limited to hands-on
training required by the formal curriculum of a post-secondary
institution, and will result in a certificate or diploma. It
involves the supervised practical application of classroom theory.
It is not "work" for the purposes of the ESA.
Internships: An internship is on-the-job training offered
by an employer to provide practical experience. Unlike
practicums, completing an internship does not result in a
certificate or diploma. The Branch uses the same test for
interns as with volunteers. If the intern provides services
that are normally provided by employees, then he or she will be an
The risk for employers is that if an individual is considered an
employee by the Branch, then the employer could be liable for up to
six months of back pay for that employee, vacation pay, severance
pay, and could be subject to administrative penalties under the
ESA. The employer could also face exposure to common law
To minimize risk when engaging someone on an unpaid basis,
employers should take the following steps:
Before engaging the individual, assess the position and
consider whether it should appropriately be considered an employee
position. If so, consider alternatives such as a fixed term
or part-time paid position (with an employment contract limiting
obligations to the statutory minimums).
Have a written agreement with the individual which clearly
defines the terms of the relationship. The agreement should
set out the fact that the position is unpaid.
When engaging a practicum student, require the student to
provide proof that the position is required for the
individual's education course and proof of enrolment in the
Provide unpaid individuals with as many options as possible
regarding their duties and hours of work. Allow the
flexibility for the individual to determine how he or she will
provide the services. Avoid assigning them identical tasks as
Do not promise future employment arising from the unpaid
Avoid providing the same benefits as employees.
Apply only relevant policies (e.g. harassment, privacy), and
not employee related policies (e.g. vacation).
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.
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