Unpaid Internships Outed as Illegal?

Is your boss breaking the law? If they employ unpaid interns in Ontario, the answer could be, "Yes."

Andrew Langille, a Toronto lawyer currently researching Ontario labour standards and case law related to internships has recently been making waves in the media outing illegal unpaid internships in the province. When he told The Canadian Press that "upwards of 95 per cent of unpaid internships (in Ontario) are probably illegal," employers probably dismissed it as salacious hyperbole.

However, Langille's assertions are based firmly in the law. In this case, it's section one of Ontario's Employment Standards Act, which outlines under what conditions employers are allowed to bring someone into their operation without paying them.

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Unless the interns in your office are part of an internship program from a high school, college or university and working for course credit, the following six conditions must all be met before they can legally work for free:
1 . The internship is similar to training which would be given in an educational environment.

2 . The internship experience is for the benefit of the intern.

3 . The intern does not displace regular employees, but works under close supervision of existing staff.

4 . The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded.

5 . The intern is not necessarily entitled to a job at the conclusion of the internship.

6 . The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

These six requirements are not unique to Ontario, they are also used by the U.S. Department of Labor for the same legality test, which is why American author Ross Perlin is also drawing attention to the continued use of unpaid interns in his new book Intern Nation: How to Earn Nothing and Learn Little in the Brave New Economy.

"It has become so normalized," he says of the practice. "It has become so natural for people to work unpaid for significant amounts of time, for many months on end and for employers to run their businesses, in some cases, on this unpaid labour."

In fact, if you go to various online job boards right now, you're bound to find many unpaid internship opportunities that allegedly violate one or more of the six criteria above. One Toronto-based magazine internship we found said the intern was to "help in the writing, fact-checking, proofreading, and running of the magazine, to ensure the magazine is produced to schedule and to maintain the high quality of the publication."

It could be argued that these responsibilities violate part one, three and four of the six-prong test because those tasks are not necessarily similar to training given in an educational environment, they may displace regular employees, since the intern is filling a spot that could go to a paid employee, and the employer probably will derive an advantage by having someone contribute to the successful publication of the magazine. Done correctly, it may not impede the process at all. Also, the internship provides a transportation stipend, which violates number six in the list unless the stipend is equivalent to minimum wage for the duration of the internship. (making it a legal paid internship)

"If someone is an employee and they're receiving an honorarium that's not meeting minimum wage, you would owe the difference between the honorarium and what should have been paid with the minimum wage," says Langille.

Unfortunately, Langille counted only 11 court decisions regarding internships in Ontario, so internships like these haven't been challenged enough to create any lasting precedent or additional legislation when it comes to this issue. Plus, Langille has yet to explore the legal status of unpaid internships in the rest of the country. Also, it's not like these internships are completely devoid of benefits, so many students don't want to sacrifice the opportunity and can't afford to fight them in court.

So, if you're an intern, where does that leave you if you think your rights are being violated?

Perlin recommends claiming credit for, and keeping records of, your various contributions, while having a tolerable cut-off point in your mind if it feels too open-ended. "They need to be clear with their supervisor that they need to pay rent and they need to earn money."