It's back to school time. For many students, this means the
beginning of looking for placements at employers to build on their
classroom experiences, gain experience or fulfill program
requirements. Employers, though should be cautious in offering
unpaid internships to anyone without fully considering the
Until recently, employers often offered unpaid internships to
students or recent graduates to provide an opportunity to gain real
world experience and begin their professional careers. Employers
may recall that in 2014 the practice of unpaid internships came
under fire by the Ministry of Labour and the general public. The
main complaint was that interns were taking the place of employees
and that employers were having work performed without having to pay
Any employer who is considering offering an internship should be
aware that there is liability exposure as an intern can make a
claim under the Employment Standards Act, 2000. The
easiest way for an employer to avoid this liability is to treat any
intern as an employee. This means paying the intern minimum wage
and abiding by other statutory minimums.
However, many employers are reluctant to pay interns when the
perceived value of their work is lower than an employee due to the
training requirements. Employers are able to offer unpaid
internships in two unique circumstances.
First, an employer can make an arrangement with a college or
university to take unpaid placement students. Often, this would be
in the form of a co-op program and would offer students the
opportunity to gain practical training to complement their
classroom experience. If a student is sent by a college or
university to an employer, the intern will not be considered an
employee for the purposes of the Employment Standards
Second, an employer can have a legal unpaid intern if six (6)
conditions are met. These six (6) conditions are:
The training received is similar to
that in vocational school;
The training is for benefit of the
The employer derives little if any
benefit from intern while he or she is being trained;
The training doesn't take someone
The employer isn't promising the
intern a job at the end of his or her training; and
The intern has been told he or she
will not be paid for his or her time.
The Ministry of Labour often catches employers by surprise when
individuals are working as interns but do not meet all of the above
criteria. Employers must be aware that simply calling a position an
internship is not enough to avoid liability under the
Employment Standards Act. Unless either of the above
exceptions is met, an individual will be considered an employee
regardless of their official title.
Additionally, employers should be aware that even if an intern
is exempt from the requirements of the Employment Standards
Act, the Occupational Health and Safety Act has been
amended to extend protections – including work refusals
– to interns. Interns are now included in the definition of
worker and employers must extend all Occupational Health and
Safety requirements and training to them.
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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Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
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