It's the first day of classes and school ain't getting any cheaper these day. So if you worked an unpaid internship this past summer and weren't paid for your labour (or underpaid via an honourarium or less than minimum wage) what can you do about it? Quite a bit actually. This post is going to explain the steps that you need to take in Ontario to potentially get paid for your work. These aren't trivial amounts either, considering that if you work forty hours per week for four month the wages owing could top out over $7,000.00.
First Step: Do you have a claim?
The first step you have to take is assess whether you potentially have a claim. All unpaid internships in Ontario are governed by section 1(2) of the Employment Standards Act, 2000 ("the ESA") and there is no way that an employer can escape their obligations under it.
Section 1(2) lays out a six prong test: (1) the training has to be similar to that which is given in vocational schools; (2) the training has to be for the benefit of the intern; (3) the employer has to derive little, if any, benefit from the intern who is being trained (i.e. no coffee fetching, mass photocopying, or data-entry); (4) the intern being trained cannot displace other employees of the employer; (5) the intern is not accorded the right to become an employee of the employer providing the training; and, (6) the intern cannot be paid for the time they spent in training.
All the conditions listed above must be met for the employer legally use an unpaid intern. In my experience most unpaid internships have multiple breaches of the ESA and the vast majority are illegal under the ESA. That being said, if your unpaid internship was part of your academic program (i.e. a requirement needed for graduate from your program listed in your school's course calendar) then you might not be covered due to section 3(5)(2) of the ESA which exempts "an individual who performs work under a program approved by a college of applied arts and technology or university".
A number of useful commentaries have been written about this subject: the Ministry of Labour has one (but not a very good one); my blog has written an overview of the case law and statutes governing internships; Professor David Doorey has written an excellent commentary with examples; and, Toronto Lawyer Nav Bhandal has written a good overview as well.
Second Step: Document Your Case
If you determined that you might have a case the next step is to organize everything into a file folder. Essentially, you need to do the following: (1) write down as much as you can remember about your internship; when the internship started and ended; what tasks you were doing; who you reported to, what projects you worked on; what your hours were; what the name of the company is; etc; (2) print out any emails you have from your employer, co-workers, and other interns; and, (3) copy any letters, cheques, agreements, or other documents that you have from your internship. Once you have done all of this write up a one or two page summary covering all the essential details of your internship.
Final Step: Call the Ministry of Labour
For students (and young people in general) the best way to legally contest an unpaid internship is through Ontario's Ministry of Labour, but there are couple catches - under the ESA you can only claim unpaid wages going back six months from the date the claim is filed and there is a $10,000.00 cap on the amount that can be recovered. So, if you did an unpaid internship this past summer the best course of action if you want to get paid is to file a claim with the Ministry of Labour immediately. Under the new system for filing claims, employees have to first ask their employers to address the problem, but for young workers this part can be skipped (if the person you speak with wants you to do this then ask to speak with the Director).
The Ministry of Labour can be reached at 1-800-531-5551 to a claim under the ESA. Once you're speaking with an Employment Standards Officer you can explain that you have put together a file documenting your unpaid internship.
That's it. If you have any questions about what to do then flip me an email or give me a call at (416) 525-1082. If you're outside of Ontario, don't fret as I'm currently researching the law on unpaid internships in the other provinces and territories. Finally, check out this video where I discuss the legalities of unpaid internships in Ontario, see: