Possibly, maybe, perhaps: Empty promises spell the death knell of the unpaid internship.

• Author: Kraljevic, Ana

Unpaid 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. 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 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...