Did you know that many so-called unpaid interns are really employees who are entitled to be paid? In Ontario, there is no law which permits an employer to unilaterally designate a person as an unpaid intern. Certain trainees and students however can be hired as unpaid interns.
A trainee is not an employee
Under the Employment Standards Act , a trainee is deemed not to be an employee. To qualify as a trainee under the ESA, six (6) conditions must be met such as a requirement that the training be similar to that which is given at a vocational school.
A student taking an approved course is not an employee
Under the ESA, an individual who performs work under a program approved by a college of applied arts and technology or a university is deemed not to be an employee. There are other work placement exceptions set out in the ESA.
An employee is generally entitled to be paid Ontario’s minimum wage
If a trainee does not meet the prescribed conditions, or a student does not satisfy the work placement requirements then a so-called intern could very well be entitled to be paid minimum wage for all hours worked. In addition, the intern may be entitled to additional compensation including vacation pay, statutory holiday pay and overtime pay.
Lessons to Be Learned
Even if an individual agrees to participate in an unpaid internship the employer may still be liable to pay the person, among other things, minimum wage for all hours worked.
An employer should enter into a written internship agreement with every intern and this agreement should set out the terms and conditions of the internship. If the person is being hired as a trainee within the meaning of the ESA then all prescribed conditions should be included in the agreement.
