Interns, foreign workers may get more protection

Ontario could expand rights under OHSA, employment standards
By Liz Bernier
|Canadian HR Reporter|Last Updated: 01/13/2014

Interns, co-op students and temporary foreign workers in Ontario could soon have more of the same legislative protections afforded to regular workers in the province.

In December, Minister of Labour Yasir Naqvi tabled the Stronger Workplaces for a Stronger Economy Act, which amends five existing statues to incorporate better protections for unpaid and precarious workers.

“The mark of any compassionate society is to protect the vulnerable workers,” said Naqvi. “What we want to do is ensure that workers get paid for the work that they have done, and give businesses that play by the rules a competitive advantage.”

The bill includes an amendment to the Occupational Health and Safety Act (OHSA) that would change the definition of “worker” to include interns and co-op students. It also includes changes for temporary foreign workers and workers who find employment through temp agencies.

As of press time, the bill had passed first reading in the provincial legislature.

Extended protections for vulnerable workers

Currently, interns and co-op students in Ontario are not covered by the OHSA.

“If the bill passes, it will make sure that co-op students, trainees and unpaid learners are covered under the Occupational Health and Safety Act, so (they) will have the full protection of the law and will have the right to refuse unsafe work,” said Naqvi.

The legislation would also extend the eligibility period for claiming unpaid wages to two years instead of the current six months and 12 months, and remove the $10,000 cap on wage recovery.

If the bill passes, Ontario will join Nunavut and Newfoundland and Labrador in setting longer time limits for recovering unpaid wages.

Under the act, temporary help agencies and agency clients would be liable for employment standards violations, and employers would be responsible for injuries to temp workers in regards to workers’ compensation claims.

“We want to make sure there is no contracting out of dangerous work to temp workers, and the rights of temp workers in terms of (OHSA) are properly protected,” said Naqvi.

The act would also extend the 2009 Employment Protection for Foreign Nationals Act to cover temporary foreign workers, he said.

“As a result, it will require employers to provide employment standards rights information to the temporary foreign workers, it will prohibit the charging of recruitment fees and it also will forbid employers from retaining or withholding essential documents like passports.”

The bill would “level the playing field” for employers that play by the rules, said Naqvi.

But the issue hasn’t really been a concern for smaller employers, according to Nicole Troster, senior policy analyst at the Canadian Federation of Independent Business (CFIB) in Ontario.

“This is something that we’ve been following… but, to be honest, this isn’t something that our members have raised with us as a concern. What we find is the relationship between small business owners and their employees is really quite unique in the sense that… it’s in the owner’s best interest to maintain a respectful working relationship,” she said.

“From our surveys, we know that (with) paid internships, for example, our members will actually pay higher than minimum wage in order to retain the employee and retain talent, because it’s harder for small firms to attract talent because they don’t have the same resources to provide the same benefits that some of the bigger firms do.”

One thing the ministry could focus on is enforcing the existing legislation, said Troster.

“One of the issues is we’ve got existing regulations and the ministry really has to make a point of enforcing them. Because we’ve got the Employment Standards Act and if employers aren’t following it, that’s a problem with ministry enforcement,” she said.

Intern, student groups strongly support legislation

The bill was met with strong support from intern and student groups, who say it is an encouraging first step from a provincial government.

“It’s a really good initiative — it’s the Ontario government really doing something and the minister of labour really taking some initiative. So at least we’re seeing some sort of concrete changes that are happening, and the changes that are in this bill are all good,” said Claire Seaborn, president of the Ottawa-based Canadian Intern Association.

Hopefully, these changes will help raise the profile of unpaid and precarious workers and the issues they face, she said.

“It’s going to raise awareness for employers, realizing that people who aren’t paid are still entitled to some protection under the law. And hopefully it will encourage employers to look a little further and realize that, in many cases, interns are actually entitled to be paid as well.”

In Ontario, interns are generally entitled to minimum wage as per the Employment Standards Act, said Naqvi.

“In terms of interns, our rules are very clear: It does not matter what your job position or your title is, if you work for someone, you are covered by the Employment Standards Act — the only exception being co-op students who get credit from a college or university, and trainees, and there are six criteria that one has to meet in order to qualify as a trainee.”

But many employers — and interns themselves — still aren’t aware of that, according to Alastair Woods, chair of the Ontario branch of the Canadian Federation of Students (CFS) in Toronto.

“With a generation that has grown up with the expansion of an intern economy, many young people don’t realize that it’s actually illegal,” he said.

The new legislation will help raise awareness of that fact — and hopefully help more interns claim back their unpaid wages, said Seaborn.

“The really important thing about the two-year extension is that, a lot of the time, interns don’t want to file a complaint until they have a new job. So they don’t want to file complaints immediately after or during their internship, because they don’t feel secure enough to be doing something that public,” she said.

“You really have to put your name out there and in many cases it tarnishes that person’s reputation in an industry, or they’re worried about not getting a reference letter from an employer. But this time period now allows an intern to get a new job, feel secure in that job and then be able to file a complaint retroactively (against) their former employer.”

Creating a dialogue

While the new legislation is a good start, there is still work to be done toward putting an end to illegal unpaid work and the exploitation of precarious workers in the province, said Woods.

“Though this is a positive step forward, we still believe that more can be done. And we are looking forward to continuing to work with the government to end the practice of unpaid work.”

The hope is this bill will be the first among many legislative steps to protect precarious workers in the province — and across Canada.

“I do hope that this bill will encourage the other provincial ministries of labour but… at the federal level, there’s a huge gap in the law, because we don’t know what the status is for unpaid workers who are working for federally regulated companies,” said Seaborn.

“They’re the ones that can set an even better example for the whole country and for all the provinces.”

National strategy?

The Canadian Federation of Students has given input on a national strategy bill that would help standardize some regulations regarding unpaid workers, said Woods.

“We’ve been working nationally with (MP) Andrew Cash… who put forward an urban workers strategy, which is a national bill that seeks to protect precarious workers such as contract workers, part-time workers, temporary workers and interns,” he said.

“One of the things that his act is seeking to do is actually to have the federal minister of labour sit down with the counterparts in the provinces, and actually try to standardize some rules and laws about internships.”

Their ultimate goal may still be a distant one but for Woods and the CFS, this legislation is the first step in beginning that conversation.

“Our ultimate goal is ending the practice of unpaid work, but I know that’s going to take a while,” he said. “So what we’re looking for is a broader conversation about what are some mechanisms that we can utilize to ensure that people can report abuses in internships that doesn’t expose their name or their reputation or their future employability opportunities.”

INTERNSHIPS

Rules on internships vary
from province to province

One major obstacle for employers and interns is there’s no real consistency from province to province when it comes to the rules around internships. Some provinces have virtually no rules set out for internships, said Claire Seaborn, president of the Canadian Intern Association in Ottawa. Here’s a look across Canada:

British Columbia: Internships are subject to minimum wage, while practicums are not.

Alberta: The language is somewhat unclear, particularly around what “entitled to wages” means. Students engaged in a government-approved work experience program are exempt from minimum wage.

Saskatchewan: Most employees are entitled to minimum wage but it is unclear what “entitled to remuneration” means and, therefore, unclear if interns qualify for it.

Manitoba: It appears from the language in the Employment Standards Code that interns would qualify for minimum wage.

Ontario: Under the Employment Standards Act, interns are entitled to minimum wage — with the exception of those doing work for academic credit.

Quebec: Unpaid interns are generally not considered employees but they can be evaluated on a case-by-case basis.

New Brunswick: It’s unclear from the language in the Employment Standards Act whether interns are entitled to the minimum wage.

Nova Scotia: The definition of “employee” appears broad enough to include interns, so they should be entitled to minimum wage.

Prince Edward Island: It’s unclear whether interns are included in the definition of “employee” and, therefore, it’s unclear whether they qualify for minimum wage.

Newfoundland and Labrador: The definition of “employee” appears broad enough to include interns, so they should be entitled to minimum wage.

Source: Canadian Intern Association

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