Unpaid internships are illegal unless part of educational programs
How much do you value the opportunity to gain valuable experience? Enough to work for free?
That’s been the principle of unpaid internships for a long time. Individuals who are fresh out of school or wanting to get their foot in the door take unpaid positions with a company so they can learn how a business works and to network, with the hopes that it will lead to an official job with that company or a similar one in the industry. For employers, it could be a way to introduce potential workers to their business without as much risk, while getting some work done cheaply.
However, unpaid internships have come under fire and are technically illegal in many circumstances. A fundamental concept in employment law is that the relationship between employers and employees features an imbalance of power — the employer holds most of it. This is especially true when it comes to workers seeking internships, as they are often people who are young and with little to no experience. Unpaid internships are seen by many as an exploitation of those who are vulnerable and powerless.
Several jurisdictions in Canada exempt internships in certain professional industries — such as law, medicine and engineering — from certain elements of employment standards such as overtime, statutory holidays, and hours of work. However, interns must still be paid at least minimum wage for any work they perform. In many jurisdictions, the only way an employer can avoid paying an intern is if the internship is part of a certified educational program.
Recently, new rules around internships came into effect for federally regulated employers that fall in line with that of other jurisdictions across the country. The amendments to the Canada Labour Code, made three years ago but effective on Sept. 1, clarify that the only way internships in the federally-regulated private sector can be unpaid is if they are part of a “work-integrated learning placement” that is part of a secondary, post-secondary, or vocational institute’s educational program.
Any other workers who are placed with federally regulated employers will be considered employees and must be paid at least the federal minimum wage for work they perform — regardless of whether the purpose of their placement is to learn, gain experience, network, or any other reason.
Why can’t internships be unpaid? For one thing, employment standards are based on the fundamental principle that employees that perform work from which an employer derives a benefit get paid in exchange for that work. One could argue that an intern is already getting something out of it through learning and networking, but this is addressed in the exemptions for educational programs.
Generally, when an intern is primarily learning and being mentored, it’s OK not to pay them. But if they start really working to the point where they are contributing to the employer’s business, it gets dicey. Without the involvement of certified educational institutions, the risk of exploitation can be high. Employment standards exist to prevent the exploitation of workers.
In many cases, people may volunteer for unpaid internships because they recognize the benefits of getting their foot in the door of a business. However, countless court decisions have made it clear that neither employees nor employers can contract out of basic employment standards minimums — with the imbalance of power, it’s likely that most of the time a volunteer doesn’t really have a choice if they want to take that first step in an industry.
Unpaid internships may have a long history in some industries, but it’s not so easy for employers to recruit for them anymore. Education is important, but so is getting paid for doing real work.