The Law on Internships

With summer (supposedly) around the corner, there is no time like the present for a refresher on the law surrounding internships, paid and unpaid.  Large and small companies turn to internships, often filled by students, to both meet human resource needs and provide work experience and opportunities for those filling the roles.  What are the parameters around this kind of work relationship in Ontario?  And how do interns and employers alike make sure they are operating within those parameters?

Generally speaking, an individual is considered an employee if they perform work for a person or a company and they are not in business for themselves (i.e., an independent contractor, or consultant).  That assumed employee designation triggers the right for that individual to receive minimum wage (currently set at $10.25/hour).  The only time that employee designation is not automatic is when all six of the following conditions are met:

  1. The training is similar to that given in a vocational school;
  2. The training is for the benefit of the intern, in the form of new knowledge or skills;
  3. The employer derives little, if any, benefit from the activities of the intern;
  4. The training does not displace someone else’s job;
  5. There is no job promised at the end of the training; and
  6. The individual has been informed that they will not be paid for their time.

If any one of those criteria is not met, the individual defaults to an employee designation.  The other exception to the employee rule is with respect to what is known as co-ops; if an individual is performing work in a workplace that is approved by a college or university, and is meant to complement classroom learning by providing practical experience, that person will not be considered an employee in the traditional definition of the word.

While there has been increased public attention to the issue of internships, particularly of the unpaid variety, there is little case law specifically on the topic.  Experts have cautioned that the number of unpaid internship positions have been rising such that that they are becoming the new entry-level, paid positions; while labelled ‘internships’, those filling these roles should be deemed employees, as they do not meet the employee designation exemptions based on the six criteria listed above.

With students on the lookout for summer opportunities, and employers increasingly seeking to trim costs and maximize existing resources, it might be a good time for employers to revisit their internship programs, and for candidates to bone up on their rights.

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