Free labour sounds great, but is it right? The law says that it’s not

Canadian social media star HootSuite recently got in hot water over its practice of not paying interns that work in their company.

After raising the hackles of interns and labour rights advocates across the country, the Vancouver-based firm has since promised to mend its ways and abide by that province’s labour act which requires organizations to pay interns that work for them. The whole incident, thankfully, has openned up discussion on the issue of whether or not businesses should pay their interns.


Who gives a hoot about paying interns?

Whether you’re an intern or a business owner who has recruited interns or considering to do so, excuse the pun, but it pays to be aware of what the law says in this matter.

There is one lawyer out there who advocates tirelessly on behalf of youth workers’ rights and specifically with regards to the growing phenomena of unpaid internships. Andrew Langille tweets under the handle @YouthandWork, among other things, as a way to shed light on this practice, which many in business are currently adopting, often without realizing that they are actually running afoul of Canadian labour rights.

Recently, he has taken his efforts one step further by exposing those who hire unpaid interns, sending tweets such as the following:

“Check out @Venngage‘s illegal wage theft and employee misclassification scheme. See:… #onpoli #topoli #canlab

“.@Kiinzel is running an illegal unpaid wage theft scheme. See:… #topoli #canlab

Both of these tweets link to craigslist postings, which, if you look at, you will see are advertisements for unpaid internships.

The courts have said repeatedly that you have to pay people for doing a job that someone would ordinarily be paid for, and yet many employers are hiring young people on an unpaid basis. Legally, as an employer you will be liable for this.

Generally speaking, by law, if you perform work for someone else’s business then you should be paid.

The Ontario Ministry of Labour website on unpaid internship says :

“Generally speaking, if you perform work for another person or a company or other organization and you are not in business for yourself, you would be considered to be an employee, and therefore entitled to ESA rights such as the minimum wage. There are some exceptions, but they are very limited, and the fact that you are called an intern is not relevant.”

So what are the exceptions? The Ministry is indicating that they are limited:

“If an employer provides an intern with training in skills that are used by the employer’s employees, the intern will generally also be considered to be an employee for purposes of the ESA unless all of the conditions below are met:

  1. The training is similar to that which is given in a vocational school. In other words, the work you are doing is similar to instruction you would get while in vocational school.
  2. The training is for the benefit of the intern. You receive some benefit from the training, such as new knowledge or skills.
  3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained.
  4. The intern does not displace employees of the person providing the training. Your training doesn’t take someone else’s job.
  5. The intern is not accorded a right to become an employee of the employer. Your employer isn’t promising you a job at the end of your training.
  6. The intern is advised that he or she will receive no remuneration for the time that he or she spends in training. You have to be told that you will not be paid for your time.”

The key here is the employer receives little to no benefit from the intern while he or she is being trained.

Despite clear indications that taking on an unpaid intern is usually illegal, it is still happening at an alarming rate. The question is why?

There is severe underemployment for youth and it is difficult for young workers to break into their field of choice. However, once they get their foot in the door and get some experience, they become more valuable and it becomes easier to get another job in that field. For employers, there are risks to taking on someone who is young and inexperienced and expensive to train them. I believe there is a gap between what is taught in school and the skills required to perform on the job.

Employers argue that youth workers today are not loyal, that they will expend time and money to train someone only to have them leave for another job.

This is part of the reason why I believe there is high youth unemployment, employers do not want to take on the risk of hiring untrained workers. Simple supply and demand suggest then people will pay to become experienced. But should employers accept this, and have they thought through the ethical and legal implications.

This is what Andrew Langille is doing. He is shedding a light on this issue and forcing people to consider the ethical and legal implications of youth internship and underemployment. I commend his efforts and his tenancity, and I’m sure there are many youth who do too.

Monica Goyal
Monica Goyal
Monica Goyal, Entrepreneur, Lawyer and Innovator is the founder of Aluvion, a legal solutions company offering technology, paralegal and lawyer-driven solutions with a special focus on the quality, cost, and accessibility of legal services for both businesses and individuals. Monica began her career working as an engineer in R&D for companies like Toshiba, Nortel and Nokia while earning her Masters of Engineering at Stanford. Monica's history conditioned her to solve problems in a efficient and tech-savvy manner, an approach she brings with her to legal solutions. Monica currently sits on the Canadian Bar Association's Futures Initiative, and will be teaching a course on Legal Technology at York University’s Osgoode Hall. She was recently named one of 10 Women to Watch in Tech in the Journal of the American Bar Association.

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