What are we to do with interns? (Editor’s notes)

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
|Canadian HR Reporter|Last Updated: 03/27/2012

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. (See “Unpaid interns in U.S. sue former employers for minimum wage.”)

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.

That’s understandable, given that employment standards are a provincial domain and the rules can vary depending on what province you call home.

Ontario has a handy six-part test in determining if an intern is actually an employee and, therefore, is entitled to all the things employees receive — including minimum wage. (See article 12664 for the test.)

British Columbia’s law is similar. It states 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 recently graduated and is looking for employment — it’s considered “work” under the law and the person must be paid wages.

In Nova Scotia, unpaid internships are “perfectly legal” as long as they’re voluntary, says Brian Johnston, an employment lawyer and partner at Stewart McKelvey in Halifax.

“There is no obligation to pay the intern,” he says. “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 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, is entitled to all the protections the code affords, including minimum wage.

Employers thinking about setting up unpaid internship programs, or those that 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 legal dilemmas. The payoff, in eliminating risk and potentially grooming a permanent employee, is probably worth coughing up a bit of cash.

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