Best Practice – Treat Interns and Summer Students like Employees
While it is always tempting to try to get something for nothing, beware of bringing in any summer students or interns on an unpaid basis. By hiring a person to do work for you for no pay, you run a real risk of breaching the minimum employment standards and wage requirements under the Employment Standards Act, 2000 (“ESA”). Under the ESA, the general rule is that anyone doing work for an employer is considered an employee.
There’s a narrow exception for trainees under S. 1(2) of the ESA, but you would need to be able to show that your firm is receiving virtually no benefit from the trainee’s presence in the office. The purpose of the trainee exception is for vocational-school type training that is primarily for the benefit of the trainee, not the employer.
The following is a checklist of things to consider when hiring summer students:
1) Prepare a written employment letter or contract setting out clear expectations for the student’s work, and the benefits and compensation the student will be receiving.
2) Adhere to the ESA requirements regarding breaks, hours of work, overtime pay, vacation pay, statutory holidays, layoffs, and terminations.
3) Be sure to provide summer students and interns with a useful initial orientation and interesting law-related work during their job term to ensure they benefit in a fulsome way from the “law firm” experience.
4) Typically, a summer student is hired for no more than three months, in which case termination pay and severance pay are not required.
5) Beware that if you hire a summer student on a fixed-term contract, and you want to terminate that contract before the agreed-upon end date, you may be on the hook for unpaid wages for the balance of the contract term unless you’ve included a properly drafted termination provision.
6) Review Rule 5 of the Law Society’s Rules of Professional Conduct which deals with a lawyer’s relationship with students, employees, and others. By-Law 7.1 deals with what types of tasks may be assigned to a non-lawyer. For law firms in the City of Toronto, the Law Society has published a procedure for summer student hiring. We recommend you consult the Law Society of Upper Canada’s website for further information. http://www.lsuc.on.ca
7) Be sure to treat your summer students well as they start their legal careers. From a marketing and reputational perspective, you will want former students and interns to speak highly about their experience working with you and your firm for years to come.