With high school and post-secondary students heading back to the classroom this September, many Ontario employers are on the lookout for co-op students or student interns. Co-ops and internships can be mutually beneficial arrangements for both employers and students, helping students gain meaningful work experience while allowing employers to effectively recruit future employees.
However, with controversy recently swirling around “unpaid internships,” some employers may be uneasy about the notion of taking on a student. And employers have good reason to be cautious. In general, if a student performs work or supplies services for a person or company, that individual is typically considered an “employee” under the Ontario Employment Standards Act, 2000 (“ESA”), and is thereby entitled to minimum wage pay for the work he or she performs, as well as to all other ESA protections.
That said, the ESA does permit unpaid student internships in certain circumstances. Employers do not have to pay co-op students or student interns if such students work by way of a work placement program that meets specific criteria. A high school student performing a co-op will not be considered an “employee” if that student is, in fact, in high school and the co-op placement is authorized by the school board running the student’s school. A post-secondary school student will also not be an “employee” if he or she is performing work through a work experience program approved by the relevant college or university.
The ESA also permits non-student internships to be unpaid, as long as the intern is being trained and the internship meets all of the following criteria:
- The training is similar to that which is given in a vocational school.
- The training is for the benefit of the individual.
- The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.
- The individual does not displace employees of the person providing the training.
- The individual is not accorded a right to become an employee of the person providing the training.
- The individual is advised that he or she will receive no remuneration for the time that he or she spends in training.
The Ontario Labour Relations Board has made it clear that such training internships must provide interns with formal instruction, supervision and evaluation. The Board has also indicated it does not look kindly on a company that: charges its customers for a training intern’s expertise; fails to document what particular skills the intern is taught; and does not track the number of hours the intern is instructed.
Written with the assistance of John Schudlo, articling student.