Deaths spark call for changes; debate surrounds unpaid workers
It was six in the morning and Andy Ferguson was halfway through the hour-long commute home from his internship in Edmonton.
He’d worked the morning shift followed by an overnight, with very little time off in between. That night shift was one of several Ferguson worked as part of his unpaid practicum at Astral Media.
But this time, he never made it home. Ferguson was killed in November 2011 after his car crossed into oncoming traffic during his drive home.
A student in the radio and TV broadcast program at the Northern Alberta Institute of Technology (NAIT) in Edmonton, Ferguson was working as both a paid employee and unpaid intern at Virgin Radio and the Bear, an FM rock station, to fulfill work requirements for his post-secondary program.
His story has been making headlines in recent weeks as the Alberta government has launched a review of post-secondary practicums in response to his death. Ferguson’s local MP, Brent Rathgeber, is also pushing for federal legislation limiting the hours interns can be asked to work.
The renewed political push comes on the heels of another death — that of Moritz Erhardt, a Merrill Lynch intern who passed away after working all day and overnight for three consecutive days. Erhardt was a 21-year-old German intern working in investment banking in the United Kingdom.
These tragedies have come to represent the worst-case scenario in the unpaid internship debate. But there are many more unpaid interns who put themselves at risk every day — all for internships that may not even be legal, said Claire Seaborn, founder and president of the Canadian Intern Association.
“By and large, unpaid interns are entitled to minimum wage unless it’s for academic credit,” she said, adding that in many — if not most — cases, unpaid internships are actually illegal.
“There are a lot of really frustrated young people (who feel) like employers are taking advantage of high youth unemployment rates.”
Still in school herself, Seaborn is a third-year law student at the University of Ottawa.
One of the biggest problems, she said, is interns don’t feel they have any legal representation or recourse if they are being mistreated.
“There’s a big lack of awareness on interns’ parts — they don’t feel that employment laws are there to protect them, because they’re not being paid,” she said. “In fact, they should be using those laws to help protect (themselves).”
Seaborn has already seen it done successfully, particularly in one Canadian case where former intern Kyle Iannuzzi filed a complaint against his former employer — and won. Platinum Events Group was forced to pay him more than $900 in back wages.
But, in many cases, interns may feel too intimidated or be otherwise reluctant to speak up for themselves, said Seaborn.
“Unfortunately, it’s so difficult when someone fresh out of university (or) currently in university wants to make a good impression,” she said. “It’s really difficult for them to try to stand up against an employer for wages, for overtime pay, because they want to make a positive impression.”
A high cost
Unpaid internships can have a steep cost to the employer as well, according to Toronto employment lawyer Andrew Langille, who operates Youth and Work, a website where he examines emerging legal and policy issues regarding young people in the workplace.
The legalities of unpaid internships are complicated, as there are statutory exclusions that may apply and the rules differ depending on the province’s employment standards legislation, he said.
“Law shifts from province to province,” said Langille. “If there’s a general rule, it is that a lot of the time unpaid internships for students are legal due to statutory exclusions. But, that being said, unpaid internships that either students would do in the summer, or that people who have graduated from university or college typically do, they’re typically illegal across Canada.”
There are some legal ways to facilitate an unpaid internship in Ontario, he said, noting that there is a six-part reverse onus test in which employers must prove the intern is not a regular employee.
“But the legal loopholes are difficult for an employer to jump through,” he said.
Even if the legal criteria are met, in some cases internships may still violate the human rights code, said Langille.
“The problem employers are facing — now that people are exploring the human rights angle of it — is that damages are involved, and damages can be quite high.”
If a human rights tribunal finds that an employer has been systemically exploiting young workers, the employer can face significant damages and orders for remedies that may keep the tribunal involved in their workplace for years, said Langille.
But fines, orders to pay back wages, provincial prosecution and human rights tribunal claims aren’t the only things employers risk.
“Increasingly, what we’re seeing is people going to the media or going onto social media,” he said. “Beyond the legal ramifications, increasingly there is a reputational cost to having unpaid internships.”
Career Edge, a Toronto-based not-for-profit with about 20 employees — including four paid interns — has helped match close to 12,000 people with paid internships in the public and private sector since it was founded in 1996. It deals with more than 1,000 employers that find paid internships to be a cost-effective talent solution, said Naguib Gouda, the organization’s president.
“There are countless advantages,” he said, citing reputation and ethics, socio-economic responsibility, motivation and retention as only a few.
“It’s helpful to the bottom line of the employers in that it is a really cost-effective and low-risk way of hiring and finding good talent,” he said.
And compensation is still a factor when it comes to getting the best work out of employees.
“If workers don’t feel that they’re getting compensated fairly for the work they do, they may not be giving you 100 per cent,” said Gouda. “So you get what you pay for.”
Employers that don’t pay interns may be excluding some excellent talent who just can’t afford to work for free, he said.
“Many people simply can’t afford to accept a job without pay,” said Gouda.
“This is a concerning thought because it means that unpaid internships cut a significant population out of the workforce. One way of looking at it is that organizations could be systematically filtering out some dedicated, hard-working candidates who have to financially support themselves.”
To remain a responsible, reputable and ethical business, creating accessible and fair internship programs is absolutely essential, he said.
“The practice of unpaid internships has been common among Canadian businesses for decades, and especially when (employers) are faced with unpredictable economic climates,” said Gouda. “(But) economic uncertainty can never be an excuse for the unjust employment of young people … really, this shouldn’t even be a debate.”
Liz Bernier is a news editor with Canadian HR Reporter.