Possibly, Maybe, Perhaps: Empty Promises Spell the Death Knell of the Unpaid Internship - LawNow Magazine

Possibly, Maybe, Perhaps: Empty Promises Spell the Death Knell of the Unpaid Internship

young woman ripping up a contractUnpaid internships are prevalent in Canada, with as many as 300,000 people currently working for free for some of the wealthiest and biggest transnational corporations. It has sparked nation-wide debate that has resulted in the naming and shaming of many businesses and corporations, including Bell Canada, the Vancouver Fairmont Hotel, and even the office of a Toronto City Councillor. Isn’t the lowly intern at least entitled to minimum wage?  Not according to the Ontario Employment Standards Act (ESA) A growing body of individuals, from Ontario Labour Minister Yasir Naqvi, to employment lawyers, to disenfranchised youth, has raised a clamour against the legality of unpaid internships arguing that it is tantamount to exploitation.

How is this phenomenon even happening?  Isn’t the lowly intern at least entitled to minimum wage? Not according to the Ontario Employment Standards Act (ESA) which prescribes that the obligation of employers to pay minimum wage applies only to “employees”, not interns.

Section 1(2) of the ESA carves out a number of exceptions wherein one is not subject to the minimum legislative standards.

Person receiving training

(2) For the purposes of clause (c) of the definition of “employee” in subsection (1), an individual receiving training from a person who is an employer is an employee of that person if the skill in which the individual is being trained is a skill used by the person’s employees, unless all of the following conditions are met:

  1. The training is similar to that which is given in a vocational school.
  2. The training is for the benefit of the individual.
  3. The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.
  4. The individual does not displace employees of the person providing the training.
  5. The individual is not accorded a right to become an employee of the person providing the training.
  6. The individual is advised that he or she will receive no remuneration for the time that he or she spends in training. ESA 2000, c. 41, s. 1 (2).

Although the word “intern” is never mentioned in the ESA, according to Section 1(2), if you are not considered to be an employee Given that there is no independent entity monitoring internships to ensure that they meet the stringent criteria necessitated by s. 1(2) of the ESA, it is little wonder that so many employers are flouting the law and getting away with it. because all of the foregoing conditions have been met, then you are, by default, considered an intern.

Since all six conditions are conditions precedent to being deemed “not an employee”, employers have a high standard to meet before they can classify someone as an intern and have a legal excuse for not paying him or her.  Given that there is no independent entity monitoring internships to ensure that they meet the stringent criteria necessitated by s. 1(2) of the ESA, it is little wonder that so many employers are flouting the law and getting away with it.

In his Blog, Law of Work, Professor Doorey of Osgoode Hall Law School breaks down each of the elements of the test that legally qualify someone as an intern and offers a commentary as to whether the lofty policy reasons underlying each provision are being applied and mirrored in the real world. I will take a similar approach and examine each of the elements in turn.

1. The training is similar to that which is given in a vocational school.

This provision relates to the whole crux of the law, which is to exempt from the ESA individuals who receive valuable training in a field that they would otherwise acquire at school while receiving academic credit.  The magazine publishing industry is the usual suspect in this case since many “interns” are eager to acquire experience and networking opportunities in lieu of journalism school. The process is akin to dangling a carrot in front of the noses of Ontario’s youth, when that carrot is a moving target.  Proponents of unpaid internships defend the practice by saying that, without it, many individuals would be unable to launch their careers and would be missing a key stepping stone to bridging the gap from university to paid work.

The problem here is that the internships do not necessarily ford that gap, with some youth reportedly completing a series of internships and finding themselves no closer to securing a job. The process is akin to dangling a carrot in front of the noses of Ontario’s youth, when that carrot is a moving target.   Moreover, is there even a sound reason for the necessity of a gap between school and employment?

We don’t see professional school graduates content to work for free in hospitals, schools, and law firms.  Why should there be a stratification of employability based upon the degree that one has earned?  Is the work provided by a journalist inherently less valuable than that of a teacher? An accountant?

It points towards the phenomenon whereby interns have become the “new Canadian underclass,” (a phrase coined by a writer for iPolitics).  Andrew Langille, a Toronto labour lawyer, echoes this sentiment saying, “the message to youth is: you’re worthless, you aren’t deserving of a wage, and I can exploit you with impunity.”

While internships may pave the way for paid opportunities in “niche” occupations, it may also deter many talented people from pursuing their passions if their financial circumstances preclude them from completing stints of unpaid training.  If this occurs, we won’t necessarily have the best and the brightest filling these positions, we will have only those individuals who have a strong support system in place which puts the well-heeled children of wealthier families at a distinct advantage.

While there are valuable internships that are lauded by many, there are also many reports of internships almost completely devoid of valuable training.  As Professor Doorey points out, many interns are making coffee, running errands, cold-calling, doing data entry and numerous other menial, monotonous, and low-value tasks that impart little to no knowledge and offer nothing in the way of widening the intern’s repertoire of skills.  These types of internships certainly run counter to the very spirit and objective of the internship experience.  They largely just rub salt in the wound.  At least if the individual was getting paid, they could justify this type of low-value experience as providing some consideration, but when the intern is forced to do tasks that no vocational school would offer in its curriculum, and on a completely gratuitous basis, it crosses a new threshold of exploitation.

2. The training is for the benefit of the individual.  AND

3. The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.

Numbers 2 and 3 are to be interpreted in concert so as to make it clear that the internship is meant to benefit the intern, not the person providing the training.  Indeed, point 3 indicates that the relationship between the intern and the person providing the training is characterized as a particular type of symbiosis wherein benefits accrue to one party with the other party receiving little to no benefit. While internships may pave the way for paid opportunities in “niche” occupations, it may also deter many talented people from pursuing their passions if their financial circumstances preclude them from completing stints of unpaid training. In scientific terms, this would be classified as commensalism.  However, news reports have indicated that a parasitic relationship is more prevalent. The “intern” performs “real work” that spares the employer the pesky task of actually having to pay employees, and the intern is  left with nothing to show for it.

Media reports are rife with this type of complaint. Two unpaid interns working on the Oscar-winning film Black Swan successfully sued Fox Searchlight pictures.  A New York district judge found that the interns provided value and benefit to the company by virtue of their performance of low-level tasks that did not require any specialized training.

A Canadian example, Jainna Patel, a math and statistics graduate from McMaster University, found that her five-week stint in the Bell Mobility Professional Management Program was similarly lacklustre in comparison to what she expected to gain from the experience.   She was enticed to “intern” for Canada’s telecommunications giant with promises of gaining valuable training.  She ended up spending long hours transcribing video, conducting telephone surveys, and filling in spreadsheets.  She was also asked to stay after hours as late as midnight.   After realizing that she was doing menial tasks and receiving little training, Patel quit the internship and filed a labour complaint with the federal government.

4. The individual does not displace employees of the person providing the training.

This provision is meant to address concerns grounded in economic policy – substituting paid employees with interns will eliminate jobs, slow job creation, and contribute to the youth “underclass” phenomenon.

5. The individual is not accorded a right to become an employee of the person providing the training.

This provision is presumably tied into the fourth provision, which is to prevent the intern from displacing a paid employee, When we retreat into 19th century labour practices in the twenty-first century, it’s a sign that the unpaid internship is serving as a fig leaf for the exploitation of youth workers desperate to find a job in the aftermath of a recession. but it doesn’t make any sense if the intern is actually interested in working for the company providing the training.  This provision protects the employer from any obligation to extend a job offer to the intern at the conclusion of the training, but leaves interns particularly vulnerable.

6. The individual is advised that he or she will receive no remuneration for the time that he or she spends in training. ESA 2000, c. 41, s. 1 (2).

This provision actually gives employers the incentive to disguise what would otherwise be characterized as work as an unpaid internship.  It is patently unjust, and for a slew of reasons, not the least of which is the crippling student debt that Ontario’s youth are burdened with upon graduation.  Today’s youth are more educated than previous generations, taking longer to finish their degrees, and are spending longer periods out of the paid workforce in the hopes of increasing their marketability to future employers.  Meanwhile, there is a great mismatch between the value of post-secondary degrees and the employment opportunities that are available once they leave the comfortable bubble of academic life.

When we retreat into 19th century labour practices in the twenty-first century, it’s a sign that the unpaid internship is serving as a fig leaf for the exploitation of youth workers desperate to find a job in the aftermath of a recession. More and more university graduates are struggling to transition into the work force and find paid employment that will provide them with much needed practical experience, not to mention a stream of income to reduce their debt load.  What is disconcerting is that this phenomenon has prompted some to label Generation Y as “entitled” for their absurd expectation that their years of hard work and investment might actually lead to a career and allow them to place a real foothold onto independence.  In reality, a huge segment of Ontario’s youth has been practicing the virtue of delayed gratification in the hopes that the denial of a paycheque today will be the harbinger of opportunities for tomorrow.

Is this a quid pro quo that Canada can condone?  Based on recent events, it looks as though the days of the unpaid intern are numbered.  The Ministry of Labour has ordered The Walrus and Toronto Life to eliminate their internship programs following a spate of complaints lambasting it’s unfair labour practices.  While some have denounced the decision as throwing the baby out with the bath water, it nonetheless sends a strong message to companies and employers that Ontario’s youth will no longer be taken advantage of.  Perhaps now we will see unpaid internships turning into entry-level positions which will thankfully bring Ontario’s youth under the protective auspices of the ESA.

 

Authors:

Ana Kraljevic
Ana Kraljevic, B.Sc., J.D., is a lawyer presently working as a paralegal instructor, regular contributor to an employment/labour publication, and an avid social justice advocate.
 


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