January 16, 2014
Do I have to pay interns? Are unpaid interns legal in Ontario?
These are just some of the questions asked by many as the topic of unpaid interns has recently been a hot issue in Ontario. The problem with the current Ontario legislation is that it leaves those working in unpaid internships vulnerable, specifically:
Unpaid Interns and the Employment Standards Act, 2000 (Ontario)
Under the Employment Standards Act, 20002(Ontario) (the “ESA”), all “employees” must be paid at least Ontario’s minimum wage. A person being trained by the employer is considered to be an “employee” unless, the internship is part of a program approved by a college or university or all of the following conditions apply:
If a worker is part of a program approved by a college or university or the worker’s position meets one of the 6 requirements under section 1(2) of the ESA, the employer is not required to pay the worker minimum wage.
However, some might argue that it is rare for a position to be for the benefit of the individual, where the employer will derive little benefit from the position. Many positions designated as unpaid internship may not actually qualify under the stringent requirements of the ESA and as such, are illegal positions.
The Occupational Health and Safety Act
The issue with the OHSA is being addressed by Bill 146, An Act to amend various statutes with respect to employment and labour, whichwas introduced by the Ontario government in early December 2013. The goal of this bill is to increase protection for employees and workers in Ontario. With all the recent attention surrounding unpaid interns and protection of vulnerable workers, it comes as no surprise that the bill proposes to expand the definition of “worker” in the OHSA to include:
If this bill passes it will address the issue of unpaid interns and safe work environments, but still leaves open the issue of illegal unpaid intern positions.
Caution to Employers
With all the current focus on unpaid internships and protecting young and vulnerable workers, employers need to be cautious when hiring for unpaid internship positions that are not part of a program approved by a college or university. Employers need to ensure that the position meets the 6 requirements of the ESA and if it does not, employers need to satisfy Ontario’s minimum wage requirements.
[1] RSO 1990, c O.1.
[2] SO 2000, c 41
[3] Employment Standards Act, 2000, c. 41, s. 1 (2).
Tags: Employment