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EDITOR'S BLOG
Mar 13, 2012

What to do with interns?

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 todd.humber@thomson.com.  

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.
    
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COMMENTS
Definition of "employer"
Wednesday, March 14, 2012 12:14:00 PM by Tara Hreceniuk
Good column, Todd - thank you.

I wonder if there is alignment in Ontario (or in other provinces and territories) among the definitions of "employer" between the ESA, OHRC, and WSIA, whether in law or in practice/precedent? For example, at what point, if any, is an intern "covered" in terms of rights to workplace accommodation, and/or access to worker's compensation coverage? Would be interesting to know.
Re: WCB coverage also problematic
Wednesday, March 14, 2012 8:52:00 AM by Todd Humber
Brian,

Thanks for your comment, and it's a great point. I didn't touch on workers' compensation coverage in my blog, but that can certainly be another hurdle for students looking for on-the-job training and a disincentive for employers bringing them on board.
WCB coverage also problematic
Wednesday, March 14, 2012 8:13:00 AM by Brian Lambert
I work at a College in Prince Edward Island (P.E.I.) and the difficulty we are encountering with our students who leave P.E.I. for on-the-job Training (OJT) in other provinces is some employers not wanting to take the student because of workers' compensation premiums or the potential for premiums. With WCB coverage for students in unpaid work varying across the country, it is becoming increasingly difficult to place students and provide them with valuable work experience.

In PEI we have lobbied on got the legislation right so that all students on OJT in the province (as long as the employer falls under WCB coverage) are covered whether they are from an institution in the province or outside. We are actually having to limit enrolment in some programs because of the lack of OJT sites.

Thanks
Brian Lambert