Commentary | The law on unpaid internships

Frighten employers into paying you

Trolling through McGill’s Career Planning Service (CaPS) job database last week, I came across the perfect summer job. It involved research and writing on an interesting topic, and it promised the opportunity to work from home. I get my best work done in bed, so naturally I was thrilled. Even better, the position resembled a job that I held last summer, until I noticed one substantial difference: it was unpaid.

We have all thought about working for free, even if we can’t afford to. Internships, long associated with glamour occupations in the arts or media, are now prerequisite for almost any entry-level position. Those who lack the cash to work for free in expensive cities scramble for a dwindling number of paid positions.

I am one of those scramblers, which is why I reacted so strongly to seeing my perfect summer job as  an unpaid internship. It hit me in the gut. Just one year ago, I was paid to do a job very similar to it.  My living expenses haven’t gone away, so why has my paycheque?

The ubiquity of the unpaid internship is hard to overstate. From Kanye West interning at Fendi, to last summer’s ‘farmer interns’, it is difficult to find a field where some young sucker doesn’t toil away for no remuneration.

Cultural references to internships abound. On a 2012 episode of the Colbert Report, Stephen Colbert referred to “cotton internships,” alluding to another era where people did real work for no pay. The comparison is exaggerated, and most critics would say that it leaves out the fact that today’s interns have a choice. Choice, however, is a slippery word in the context of precarious employment. If most interns had a choice, they would probably choose to get paid.

The law regulating internships varies from province to province. Ontario has some of the clearest legislation on this topic. According to Ontario’s Employment Standards Act, for a position to be called an internship, the employer should “derive little, if any, benefit from the activity” and the employee should receive training “similar to that which is given in a vocational school.”

Last year, an Ontario court awarded settlements of around $10,000 to two former interns of a software engineering company. In Girex Bancorp Inc. v. Hsieh, the court held that “aside from a reference letter of dubious value,” the employer reaped all the benefits of the “voluntary trainee” labour. Sound familiar?

The Canadian Association of Career Educators & Employers’ statement on unpaid internships, which McGill has endorsed, echoes some of Ontario’s criteria for acceptable unpaid internships. Despite this, a quick search on CaPS’ job database reveals postings for unpaid internships of dubious legality. Reference letters, networking opportunities, and yes, even “experiential learning,” are not acceptable substitutes for a living wage by any legal or moral standard.

A common counter-argument to the idea that people should be paid is that employers, particularly non-profits, cannot afford to pay their (young, temporary) employees. There is nothing unprecedented about the financial squeeze on non-profits and, while it is unfortunate, it is no excuse for making the opportunity to work at a non-profit the prerogative of the rich alone. The homogenous life experiences of people working in the non-profit sector are a real problem that the reliance on unpaid interns only exacerbates.

A good first step to navigating the rampant illegality of unpaid internships is simple: refuse to work for free. If the thought of demanding a paycheque makes you feel so weak, scared, and alone that you would rather work for free, then work away. Once you are finished volunteering your summer for an investment bank, do what the two young interns in Girex Bancorp Inc. v. Hsieh did: complain to your local labour board. If there is anything encouraging about the legal situation of unpaid interns in Canada it is that there is nothing like the threat of a future lawsuit to make employers follow the law– and this time, the law is on your side.

Josh Mentanko is a first-year law student. Josh can be reached at josh.mentanko@mail.mcgill.ca.


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