Scaling Asshole Mountain (And Other Adventures In Nerdistan)

I like to think that this website channels the street fighting spirit of Rowdy Rathore and the sly social commentary of Psy to address uncomfortable and challenging realities that presently exist in Canada's youth labour market. In this vein I often call out companies that use illegal unpaid internships via social media (on this point, check out the poignant musings of @depressedgrad). Rarely do companies respond to these interventions, but in the past I've gotten into debates (oddly enough) with the editors of This Magazine and Rabble.ca over their hypocritical stances on exploiting the labour of unpaid interns. 

Fast forward to last week when I got into a dust-up on Twitter with Ryan Creighton, a veteran of Toronto's video game industry, after I called him out on his practice of using unpaid internships at Untold Entertainment. He responded by writing a blog post which I highly encourage people to read as it's central to the comments I make below and a fascinating window into how employers justify using unpaid internships. 

What strikes me about Mr. Creighton's troubling blog post is the pure arrogance that it betrays through a hysterical defence of exploiting young workers for free labour all the while portraying himself as a victim and a helpless employer. Rather than owning his actions he pushes back in a sarcastic manner that exposes some interesting points. Let us run through a couple points below.

First, Mr. Creighton has established a pipeline of free labour from Ontario colleges which send him numerous students. This is a completely legal, although problematic, practice as subsection 3(5)(2) of the Employment Standards Act, 2000 ("the ESA") completely excludes post-secondary students from protection if they are completing requirements of their academic programs. 

Many companies would be happy with simply an endless supply of free student labour, but not Mr. Creighton as he appears to be against the idea of having to pay the minimum wage to his non-student interns. He offers a detailed explanation of how he has concocted various schemes aimed at avoiding compliance with the ESA when using non-student interns, stating: "i [sic] do usually ask them them to sign something, although i'm [sic] well aware that you can't contract yourself out of your rights. The signed agreement is to document how we entered into the arrangement - as trainer to trainee, as employer to non-employee, as volunteer in exchange for coaching." All this being a probable example of employee misclassification as Mr. Creighton has these "interns" performing work coding gaming websites and working on developing computer games which is most likely a breach of the third prong of the test enumerated under subsection 1(2) of the ESA - remember that Mr. Creighton is running a for-profit company, not a school or training facility.

Second, Mr. Creighton offers some interesting advice to companies who might be the target of an investigation by providing a couple of examples - his second one is telling, he states: "2. A jilted ex-intern files a claim with the Ministry demanding back pay. If you treat your people well, and if those people don't want to get themselves blacklisted in the industry they're trying so desperately to break into, the second case likely won't crop up." What Mr. Creighton refers to with blacklisting is the ability of an employer to exact an extraordinarily punitive form of revenge if, God forbid, a misclassified employee tries to enforce their rights under the ESA. 

Employer blacklisting is an excellent example of the extreme vulnerability that unpaid interns experience as precarious workers. The marginalized social location of interns as precariously employed recent labour market entrants doesn't generally allow them to contest the conditions of employment given that they would likely be foregoing letters of reference, future employment opportunities, and access to networking if they challenge their employer. This is a well-documented phenomenon that was prominently displayed in the Diana Wang lawsuit against Hearst Corporation. To date interns who fight back often times literally forego any chance of working in their chosen industry, this point serves as a partial explanation as why these sorts of lawsuits have been rare until recently.

The point of all of the foregoing is not to demonize Mr. Creighton (trust me it's difficult typing with kid gloves on), rather it's to show how exploitation, wage theft, and misclassification of young workers are routine day-to-day practices that employers feel they have a divine right to engage in. Employment standards were created with the goals of universality, fairness, and the creation of social minimums.  We've reached the point in the labour market where unpaid interns being effectively excluded from the benefits of any of these goals. 

In subverting established social minimums, employers are eroding the wider labour market - it's not just the intern who foregoes wages, but also a stealth attack on paid employment, secure jobs, and the floor of rights that's created through employment standards. In Ontario with the youth unemployment rate is hovering at 17.7% and the R8 rate for youth at 24.3% there are deep structural problems afoot in the youth labour market that sorely require intervention by junior and senior governments in Canada. What that intervention might look like will be the focus of a post in the near future...until then.