Having an unpaid intern around to run errands and get some things done may be nice, but it may also be illegal
By Jeffrey R. Smith
There are many legends out there of things that some people may think exist, but in reality they do not.
Dragons, unicorns, griffins — these are mythical creatures that exist only in the realms of fantasy. For employers, some may or may not realize that another being is (legally) only something out of fantasy: The unpaid intern.
Facetiousness aside, it’s not completely true unpaid internships don’t exist. Employment standards law in most jurisdictions allow for them in specified industries — such as for vocational training in skilled trades. Anything else other than a placement as part of an educational program is likely illegal.
Employment standards legislation in many Canadian jurisdictions defines what work is and stipulate that anyone who performs work that has commercial value to, and benefits, an employer is entitled to be paid. So while internships that benefit the intern by allowing her to learn skills and build her potential to earn an income may be unpaid, but if the intern ends up doing actual work the employer needs to have done, she’d better get paid.
If an employer is using unpaid interns, it could get a little tricky if the line between learning and doing work is crossed. A program like job-shadowing might be fairly safe, though if the intern isn’t getting paid at all, the employer would need to be vigilant the intern is just learning and not working. Otherwise, the employer could be liable to pay the intern back pay, likely at the minimum wage rate. Something to think about when you need coffee or that report typed up.
So is it even worthwhile for an employer outside of the skilled trades to have unpaid interns, or does it make more sense to hire them as paid probationary employees?
Often, internships have the expectation of a job at the end once they complete the program anyway, so why not hire them from the beginning and train them as an employee? They would be eligible to perform work sooner and, if it doesn’t work out, the employer would still be able to terminate their employment — without too much notice, since they would be short-term employees or possibly still on probation.
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected] or visit www.employmentlawtoday.com for more information.
