Unpaid Internships: Are They Legal (in Ontario)?
Internships have become a common pathway for students and recent graduates to gain valuable work experience, explore their career interests, and kickstart their professional journey. In Ontario, where opportunities for experiential learning abound, the question often arises: Are unpaid internships legal?
In this blog post, we will delve into the subject of unpaid internships in Ontario, exploring the legal framework, the rights of interns, and what employers need to know to stay on the right side of the law.
Are Unpaid Internships Legal in Ontario?
The short answer is: no. The legality of unpaid internships in Ontario hinges on several factors and must comply with specific legal criteria. Unpaid internships are inherently illegal, unless they meet certain conditions to be considered legal under Ontario labour laws.
In Ontario, unpaid internships are illegal per se, unless they fall under certain exceptions outlined within the Employment Standards Act, 2000 (“ESA”)—Ontario employment legislation which protects those considered to be “employees”. If interns do not fall under the specified exceptions outlined by the ESA, then the intern is treated as an employee under the law and is entitled to all the payments and notice periods that a regular employee is entitled to.
Student Internships and Field Placements
Section 3(5) of the ESA exempts people who perform work under a program approved by a secondary school board, a college of applied arts and technology, a private career college, or a university—this includes co-ops, internships, and other experiential learning placements. Under these programs, the intern would receive credit for their program rather than pay.
While the definition of “employee” under section 1(1) of the ESA includes “a person who receives training from a person who is an employer, if the skill in which the person is being trained a skill used by the employer’s employees”—not all trainees are covered, as seen under the Ontario Regulation 285/01 (“Reg 285/01”).
Section 2(1)(e) of the Reg 285/01 exempts professionals and students training to join the specific professions like architecture, law, professional engineering, public accounting, from certain employment standards protection, which opens up the possibility for unpaid placements.
Regardless of whether the intern is paid or not, employers are still obligated to comply with applicable legislation, and any contract or agreement is void if it contravenes with the law.
The definition of a “worker” under Ontario’s Occupational Health and Safety Act (“OHSA”), includes interns who perform work under program approved by secondary school board or program approved by a college of applied arts and technology, university, private career college or other post-secondary institution without pay. These interns will be entitled to protections under the OHSA, meaning even if their work is unpaid, they have the same rights as a paid worker under the OHSA, and employers must maintain the safety of the workplace.
Best Practices for Employers
While unpaid internships can be legally permissible in Ontario when they meet certain criteria, employers should aim to create a positive and compliant internship experience. To ensure your organization adheres to the law and offers valuable learning opportunities, consider these best practices:
Clearly Define the Internship Program
Develop a well-defined internship program with clear objectives, learning outcomes, and expectations. This program should be distinct from regular employment.
Offer Structured Learning Opportunities
Provide interns with opportunities for skill development, training, and mentorship. Interns should gain knowledge and experience relevant to their field.
Assign Meaningful Projects
Assign interns tasks and projects that contribute to their learning and professional growth. These tasks should not be routine or solely focused on basic administrative work.
Create a Mentorship System
Assign a mentor or supervisor to guide and support the intern throughout their internship. Encourage regular feedback sessions to track progress.
Develop a Written Internship Agreement
Draft a clear, written internship agreement that outlines the terms and conditions of the internship, including the duration, scope of work, and the fact that it is an unpaid position.
Ensure Compliance with Provincial Laws
Familiarize yourself with the specific labor laws in your province regarding unpaid internships. Ensure your internship program aligns with these regulations.
Establish a Voluntary Participation Policy
Interns should participate voluntarily, and they should not feel pressured or coerced into accepting the internship. Make it clear that they have the freedom to leave if the experience does not meet their expectations.
Offer Benefits Beyond a Paycheck
Consider providing non-monetary benefits, such as networking opportunities, access to industry events, and career development resources, to enhance the internship experience.
Maintain Open Communication
Establish regular communication channels with interns to address questions, concerns, and feedback. Encourage interns to voice their opinions and share their experiences.
Regularly Review and Update Policies
Periodically review your internship program and policies to ensure they remain compliant with evolving labor laws and industry best practices.
Promote Diversity and Inclusion
Foster a diverse and inclusive internship environment that welcomes individuals from various backgrounds and perspectives.
Seek Legal Counsel When in Doubt
If you are unsure about the legality of your internship program or have questions about compliance, consult with legal counsel or an employment law expert for guidance.