Some Legal and Public Policy Considerations Regarding Internships

As part of my series on how workplace law discriminates against young people in Ontario I thought that writing a post on  internships would be rather timely. The use of internships by employers in Ontario is on the rise and in many industries they are quickly replacing entry-level positions. New graduates are using them as a means to stand out in an increasingly competitive labour market that hasn't been kind to young people and organizations love them because they are a way to obtain free labour and gauge if a person is a good 'fit'. The problem being in many cases using interns is simply illegal and a violation of numerous provisions contained within Employment Standards Act, such as minimum wage, vacation pay, and overtime. 

To understand the legal dimensions of this issue, one has to take a look at definitions contained in clause (c) from section 1. (1)  under the definition of employee and section 1. (2) of the Employment Standards Act, the criteria laid out there presents a substantial hurdle if an employer doesn't want to label a person an employee. This leads me to suspect that a substantial percentage of interns in Ontario are actually employees and are being mischaracterized by their employers contrary to a litany of federal and provincial statutes. Branching out it also appears that internships wouldn't be covered under key statutory protections afforded under the Occupational Health and Safety Act, the Workplace Safety and Insurance Act, the Labour Relations Act, and the Human Rights Code. I do note that both the Ontario Human Rights Commission and the Human Rights Legal Support Centre take the position that volunteers and interns are captured under section 5 of the Code, this may well be the case but given the absence of jurisprudence addressing this issue and arguments being advanced against volunteers being covered it clearly remains a point of troubling, unsettled law. 

Underlying this issue is the fact that the statutory regime governing workplaces in Ontario hasn't been updated to reflect the rapid changes that the Ontario economy has experienced under globalization. From a public policy perspective society as a whole isn't being served by the approach taken by successive governments not to prioritize the labour file and while politicians are avoiding the thankless task of modernizing employment law, there are significant drawbacks for  people of Ontario.  Consider the following: the province is losing out of sources of revenues in the form of taxes, lower consumer spending, and delayed repayment of OSAP loans; the absence of legal protections for young people starting their careers; and, previously paid positions disappearing in favour of internships. Many jurisdictions within the United States have already updated the laws to reflect the rise of internships as part of the corporate tapestry.

For more information about the growing prevalence of internships see the following: The Varsity recently published an excellent article on internships entitled "All Work and No Pay"; the New York Times have printed a number of great articles over the years, see: here, here, and here; David Doorey recently did a blog post about whether unpaid interns are illegal in Canada, read it here; and, previously I have written about this issue. If anyone has any thoughts about internships please leave a comment or drop me an email.