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Unpaid internships are becoming more common in the labour market and are replacing entry level positions in various industries. Typically, unpaid internships have been the means of gaining experience in the television, film, and print media industries. Unpaid internships are supposed to be educational opportunities that lead to gainful employment, but many unpaid interns find that this is the new norm for work, going from one unpaid internship to the next. Click here for an article by CTV exploring this issue.

In the United States, a class action lawsuit has recently been filed by Alex Footman and Eric Glatt against Fox Searchlight Pictures, alleging that their unpaid internships on the film Black Swan were really entry level positions, illegally misclassified as internships, for which they should have been paid. An interview with Eric Glatt and lawyer Elizabeth Wagoner from Outten Golden LLP was rebroadcast on December 28, 2011 on the CBC radio show Q, with Jian Ghomeshi,

In Ontario, non-unionized employment is regulated by the Employment Standards Act, 2000 (“ESA”). However, according to the Ministry of Labour, unpaid internships are not regulated in the province. The question that arises is whether an “intern” is really an “employee” as defined as follows under the ESA:

(a) a person, including an officer of a corporation, who performs work for an employer for wages,

(b) a person who supplies services to an employer for wages,

(c) a person who receives training from a person who is an employer, as set out in subsection (2), or

(d) a person who is a homeworker,

and includes a person who was an employee;

Subsection (2) states that “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.

If an individual meets all of the six criteria, then they are not considered “employees” and are not entitled to the protections of the ESA.

It is important, therefore, for both employers and employees to be mindful of these statutory provisions. Depending on the nature of the work, an individual may be an employee entitled to all of the ESA minimum standards and protections, even though the position is officially considered an “internship.”