Unpaid interns – are they really employees?

As the school year comes to an end, unpaid internships will become more common – but employers must be careful, warns one labour lawyer.

Unpaid interns – are they really employees?
As the end of the school year approaches, employers might find themselves with a number of unpaid interns on the team but one labour lawyer says HR managers must be careful to remember the legal restrictions governing such placements.

“Unpaid internships are impermissible in Ontario unless the internship falls under one of the three narrowly construed exemptions listed in the ESA,” says Dave McKechnie.
The three types of permissible internships are:

1.One which is part of a program approved by a secondary school board, college, or university.

“This exception exists to encourage employers to provide students enrolled in such programs with practical training to complement their classroom learning,” explains McKechnie. “Typically, students receive school credits for participating in these internship programs and may also be compensated with honorariums or bursaries.”

2.One which provides training for a specifically listed profession, including architecture, law, public accounting, veterinary science, and dentistry.

Many employment standards, including minimum wage, hours of work and overtime, do not apply to professionals in designated fields – so the same goes for interns.

“Since the ESA does not normally apply to such professionals, the ESA also does not apply to such professionals when they are receiving training in their designated field,” confirms McKechnie.

3.One which meets the six conditions required for the intern to be considered a "trainee."

The six conditions are:
  • The training is similar to that which would be given in a vocational school.
  • The training is for the benefit of the individual
  • The person providing the training derives little, if any, benefit from the activity of the individual while they’re being trained.
  • The individual does not displace employees of the person providing the training.
  • The individual is not accorded a right to become an employee of the person providing the training.
  • The individual is informed that they won’t receive any remuneration for the time that they spend in training.
 
“In all other instances, "interns" fall within the broad definition of "employee" under the ESA and are entitled to the minimum standards under the ESA,” clarifies McKechnie – that includes hours of work, minimum wage, overtime pay, and vacation pay.

Read McKechnie’s original article here.
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