Mythbusting Interns and Employment Rights

Taylor Crane Rodrigues

An estimated 300,000 internships occur in Canada every year and most of them occur in the Greater Toronto Area, Canada’s unofficial intern capital. Interns are typically 18 to 32 years old, have limited paid work experience, and are pursuing a post-secondary degree.  They are often unfamiliar with their legal employment rights and some employers may take advantage of this ignorance. So let’s bust some common myths!

Myth 1: “Interns aren’t entitled to wages.”

In Ontario, most employees work in provincially regulated industries and are entitled to employment rights under the Employment Standards Act (ESA). Employees in Ontario who work for the Government of Canada, or in banking, telecommunications, or other federally regulated industries have employment rights under the Canada Labour Code instead.

A worker’s minimum employment rights are determined by the type of work they do and their relationship to their employer—not the title their employer gives them.

Generally, if you perform work for another person or a company in Ontario and you are not self-employed, you are an employee and entitled to employments rights under the ESA—including the right to a minimum wage. The fact that a worker is called an “intern,” “volunteer,” or even a “volunteer intern,” does not eliminate their employment rights or their right to a minimum wage. A worker’s minimum employment rights are determined by the type of work they do and their relationship to their employer—not the title their employer gives them. However, workers can obtain employment rights above the minimum ones prescribed by law by negotiating them into their contract with their employer.

There are two main exceptions that employers can use to legally avoid paying interns minimum wage. First, there is the educational exception: students who complete academic internships under a program approved by their post-secondary institution are not entitled to minimum wage.

Second, there is a trainee exception: an intern is not entitled to a minimum wage if all of the following conditions are met:

  1. The training is similar to that which is given in a vocational school.
  2. The training is for the benefit of the intern. The intern receives some benefit from the training, such as new knowledge or skills.
  3. The employer derives little, if any, benefit from the activity of the intern while they are being trained.
  4. The training does not take someone else’s job.
  5. The employer isn’t promising the intern a job at the end of their training.
  6. The intern has been told that they will not be paid for their time.

Employers frequently try to use the trainee exception as justification for not paying interns—but it is actually quite narrow in practice. There has only been one case where an employer successfully used the trainee exception, and over eight cases where employers unsuccessfully tried to use it. If employers are hiring interns outside of an approved academic internship program and are benefiting from their work, they don’t satisfy condition 3 of the trainee exception, and they legally have to pay them at least minimum wage.

Myth 2: “Interns are not covered by health and safety or anti-harassment laws.”

Sadly, this myth is true for unpaid interns in some parts of the United States, which is likely why the notion has spread to Canada.

However, in Ontario today, both unpaid and paid interns are entitled to health and safety, anti-harassment, and anti-discrimination protections that they cannot legally give up.  The ruling in Rocha v. Pardons and Waivers of Canada made it clear that all interns in Ontario working in provincially regulated industries are covered under the Ontario Human Rights Code. In 2013, the Ontario Occupational Health and Safety Act was amended to give unpaid interns health and safety rights. Then, in 2015, the Canada Labour Code was amended to give all federally regulated unpaid interns health and safety rights. Previously, only paid interns were entitled to these rights.

Myth 3: “If interns’ labour rights are violated, they have to go to court for a remedy.”

Interns can sue their employer in court if their labour rights are violated—but they don’t have to. They often have other means of recourse available to them. Interns in Ontario can contact the Employment Standards Information Centre toll-free at 1-800-531-5551, or online if they are unsure whether they are covered under the Employment Standards Act or if they are entitled to minimum wage. If their employment rights are being violated, they can file a complaint with the Ontario Ministry of Labour.  It is illegal under the Employment Standards Act for employers to punish employees for inquiring about or exercising their employment rights.

The Ontario Human Rights Legal Support Centre can help interns working in provincially regulated industries determine if they have been discriminated against and help them file an application with the Human Rights Tribunal of Ontario. Interns working in federally regulated industries can file complaints with the Canadian Human Rights Commission if they believe they have experienced discrimination. They can also contact the Government of Canada’s Labour Program toll-free at 1-800-641-4049 if they are unsure if they are covered under the Canada Labour Code.

Enforcement Issues

Currently, Ontario interns have many employment and human rights on paper. But in practice, many interns are often hesitant to report violations of their employment or human rights because they fear reprisal. Most interns, and employees generally, don’t make a labour complaint until they are fired or quit. Even after leaving their internship, many interns are afraid of filing a complaint because they don’t want to ruin a work reference or get “blacklisted” from the industry.

To protect interns’ labour rights, the Ontario Ministry of the Labour and Employment and Social Development Canada need to continue doing proactive labour inspections of high-risk employers instead of waiting for an intern to file a formal complaint. It is unconscionable to wait until young inexperienced employees with little bargaining power file a complaint before they investigate a potentially abusive or illegal work environment.

Taylor Crane Rodrigues is a 2017 Master of Public Policy Candidate at the School of Public Policy and Governance. He holds an Honors Bachelor of Arts in Philosophy and a Certificate in Ethics with Distinction from the University of Western Ontario. His professional interests include fiscal policy, health policy, environmental policy and libertarian paternalism.