Brave New World: The Intersection of Technology and Employee Misclassification

This post is going to examine one of the fascinating aspects of my ongoing research into internships, which is the technological infrastructure that has allowed the proliferation of this type of exploitative labour. In Toronto websites that regularly post illegal unpaid internships postions are Craigslist, Work In Culture, Masthead, and Kijiji. These websites are the glue that holds intern culture together as they serve as the crucial link between employers and soon to be misclassified employees.

Previously I have written about how universities in Ontario regularly post illegal unpaid internships and if you're a reader who is currently a student I encourage you to log on to your school's career website and compare the posted internship positions with the laws regarding unpaid internships. Remember that unless you're student and the internship is a component of a bona fide academic program (i.e. a requirement listed in the course calendar) the chances of it complying with the Employment Standards Act, 2000 are remote at best.

The proliferation of these online postings represents some of the emerging regulatory difficulties the State faces in the Internet age (beyond the regular dilemmas that unpaid internships present) and while I haven't figured out a complete "fix" yet, some ideas that I'm playing around with include: introducing fines for third party websites that post illegal positions, but take zero responsibility for the content contained therein; creating new powers to give prosecutors at the Ministry of Labour the ability to seek ex-parte relief to compel internet service providers to disclose the ISP addresses and the physical locations of employers who anonymously post illegal positions; and, the development of an online strategy regarding employment standards at the Ministry of Labour that would update practices to bring enforcement into the twenty-first century. Those are but a few of the policy ideas I'm toying around with.

Janelle Watkins

Now an example of one company which is advertising online for applicants for an illegal unpaid internship position in Toronto. This week's unlucky contestant is The Scene in TO, a new arts website, which has all the typical bougie trappings that one expects from a pretentious culture oriented web offering. The website came to my attention after it posted a advertisement on Work In Culture looking for a SEO Intern. Regular readers of Youth and Work will recall a post from last week that explains what SEO is, but for the uninitiated it refers to the highly prized skill of search engine optimization which allows websites to boost traffic to them via deploying keywords for search engines to pick up.

The ad states that "applicants must be willing to work on a part time, unpaid basis for a minimum of six months". In terms of what the intern would be doing the ad says "the SEO Intern will be responsible for implementation and development of keyword research and tracking, link building, content creation, SEO implementation (meta images, tags, keywords) and other on-page and off-page search engine strategies". Also, they don't want an idiot, no they want someone with "a degree related to marketing, advertising, communications, or English subjects" and an "diploma in Online Marketing is helpful". There are a lot more requirements contained in the ad which strike me as ridiculous given that the successful applicant will never see a dime for their efforts, but I'll let you take a gander yourselves (photos of the impugned ad appear below).

The internship violates s. 1(2) of the Employment Standards Act, 2000 via a clear breach of the third prong of the six-part test which states "the person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained". There's simply no way to get around the fact that the intern is providing a valuable benefit that would otherwise cost thousands of dollars a month if an employee or outside contractor were to do the same work. Also, there's a potential to argue the fourth prong of the test addressing displacement of employees is being violated, but given the relative lack of jurisprudence I can't definitively state either way.

If you desire, send Janelle Watkins, the directing mind of The Scene In TO, an email explaining how illegal unpaid internships are a bane on young workers in Toronto. It should be noted that the Cultural Careers Council Ontario ("CCCO") operates Work In Culture and has a complicity in perpetuating precarious work for young cultural workers in Toronto, in this regard people should contact Diane Davy, the Executive Director of the CCCO, and Celia Smith, the Chair of CCCO's Board of Directors, to explain that a goverment funded organization should not be advertising illegal unpaid internships.