Many young individuals across the country participate in
internships, which are utilized by employers in many industries,
and which are seen by many individuals as an opportunity to gain
valuable experience. An area of particular interest, and possible
pitfalls, relates to internship programs that involve unpaid
interns. Although every jurisdiction in Canada has legislation that
permits interns in some circumstances to perform work without
compensation, in many parts of the country these situations are
limited and these limitations should be noted carefully by
employers. Simply calling a position an "internship" will
not – in and of itself – be enough to permit an
employer to utilize unpaid interns, and the rights of workers in
this regard cannot be simply waived or avoided by agreement between
employer and employee.
All "employees", whether working in a provincially or
federally regulated sector, are protected by employment standards
legislation. As employers will be aware, this legislation places
duties on employers and establishes minimum standards in respect of
a host of matters. However, the legislation also provides for
circumstances where work will be exempted from all or some of these
usual standards. These exemptions include, for example, work that
is done by a student as part of an approved education or work
experience program, and individuals receiving necessary hands-on
training for certain professions, such as in the medical,
engineering, and legal fields. It should never be forgotten
that, regardless of whether an intern is exempt from certain
employment standards minimums, they will always be protected by
health and safety legislation and human rights legislation in all
The majority of Canadian jurisdictions have employment standards
legislation that includes a broad definition of
"employee", which could arguably include interns, both
paid and unpaid. One interesting exception is Alberta. The Alberta
Employment Standards Code, RSA 2000 c E-9, states that an
employee is "an individual employed to do work who
receives or is entitled to wages and includes a former
employee". Issues arise as to potentially circular arguments,
wherein the fact of not paying wages appears – on its face
– to give rise to an exemption from the Code, and
therefore the right not to pay wages, and not to comply with the
Code. It should be noted that the courts have held
that benefit-conferring legislation, such as the Employment
Standards Code, must be interpreted broadly. Thus, Alberta
employers must be careful, and should seek legal advice, in respect
of any unpaid internship.
In all jurisdictions, unpaid interns have the right to file
employment standards complaints if they believe that they should
have been paid for their work, or that some minimum legislated
employment standard has been breached. If an employment standards
officer's investigation reveals that the worker was entitled to
pay, back-pay can be recovered from the company on behalf of the
worker. In April of this year, the Ontario Ministry of Labour
conducted a well-publicized blitz of Ontario workplaces, recovering
almost $140,000 in wages owed to interns across approximately 20
Even if a company's internship program is in compliance with
all employment standards legislation, such programs can give rise
to other important concerns for employers, including public
relations considerations. In some circumstances, internship
programs have been perceived or portrayed as exploitative or
contrary to corporate best practices. However, developed and
implemented in a careful, legal and conscientious fashion, they can
be valuable programs from both the employer's and the
Earlier this year, the federal government set forward a proposal
to allow federally-regulated sectors to establish unpaid
internships. The proposed internships could span up to four months,
and would require that the position be "primarily for the
benefit of the student". The proposal has not been without
controversy, and employers and their legal counsel will no doubt be
watching for further updates with interest.
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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