Whether or not you should pay an intern is an ethical question — but it could also be a legal one, as lawsuits and employment standards legislation shows
By Todd Humber
We’ve talked before about the morality of using unpaid interns — it’s well covered territory. But the legality of using unpaid interns is causing plenty of ripples, particularly south of the border, where lawsuits — and talk of class actions — are making headlines.
We’re taking a look at this phenomenon with one of our cover stories in the March 26 issue of Canadian HR Reporter. Keep an eye out for that.
Whether or not you should pay an intern is an ethical question, open to debate. Whether you have to under the law is a little more black-and-white. But some HR professionals I spoke with on this side of the border are seeing shades of grey, with many uncertain as to the exact rules across the country. That’s understandable, given that employment standards are a provincial domain and the rules vary depending what province you call home.
Ontario’s has a handy six-part text in determining if an intern is actually an employee, and therefore entitled to all the things employees get — including minimum wage.
British Columbia’s law is similar. It states that students doing a practicum as part of their post-secondary education do not need to be paid. But if the internship is not part of the degree program — such as someone who has recently graduated and is looking for employment — it’s “work” under the law and the person must be paid wages.
Brian Johnston, an employment lawyer and partner with Stewart McKelvey in Halifax, said unpaid internships are “perfectly legal” in Nova Scotia as long as they’re voluntary.
“There is no obligation to pay the intern,” he said. “The theory is they’re advancing their education.”
Manitoba’s Employment Standards Code does not apply to students who are given work experience or training as part of their education. And there are exceptions for internships in certain designated professions — such as pharmacists — from portions of the code.
But an intern who’s not in school, not completing a practicum and not in one of the designated professions would be considered an employee, and therefore entitled to all the protections the code affords, including minimum wage.
Brian Kenny, a partner with MacPherson, Leslie and Tyerman in Regina, said professional interns are exempt from overtime provisions in Saskatchewan but wouldn’t be exempt from the minimum wage. And he also underscored the difference between people volunteering their time for a non-profit charity versus professional interns.
But, frankly, the issue of unpaid interns has been kind of a moot point thanks to Saskatchewan’s booming economy, he said
“The economy is robust, employment is at a high level and it’s been that way for a number of years,” he said. “Everybody seems to be able to get a job that wants one. There’s more demand than supply in the province right now.”
Employers thinking about setting up unpaid internship programs, or those who currently have unpaid interns wandering the halls, should take a long look at whether they’re complying with the laws in their jurisdiction.
Of course, there’s always the solution that kills two birds with one stone — paying interns at least the minimum wage and treating them like employees solves both the ethical and the legal dilemmas. The payoff, in eliminating risk and potentially grooming a permanent employee, is probably worth coughing up a bit of cash.
Todd Humber is the managing editor of Canadian HR Reporter, the national journal of human resource management. He can be reached at email@example.com.