This article was originally published in OPENWIDE back in 2015, and was written by Travis Welowszky
The growing precarity of youth unemployment is having a widespread impact on the socioeconomic health of young Canadians. OPENWIDE Editor-in-chief Travis Welowszky spoke with Andrew Langille, a Toronto-based labour lawyer and internationally recognized labour law scholar, about unpaid internships, labour laws, and youth unemployment in Ontario.
Travis Welowszky: In light of the recent news that Bell Mobility has shut down their Professional Management Program, which annually recruits hundreds of unpaid interns throughout the company, it appears there is now a heightened awareness surrounding internships in Ontario. What has lead to the Labour Ministry now cracking down on unpaid labour?
Andrew Langille: Over the past few years there has been a growing awareness of the problems associated with unpaid internships in Ontario. At the core, unpaid internships are unfairly target vulnerable segments of population such as young people, recent immigrants, and women returning to the labour force after having children. There’s a deep gendered dynamic inherent within intern culture and it’s becoming readily apparent that young women take on unpaid internships at a far higher rate than men. Finally, unpaid internships are a form of precarious work which are having a deep impact on the economy as young workers are delaying major life events, wages get driven down, and interns are forced to rely on familial support or go into debt to support themselves.
Essentially the Ministry of Labour was forced to act due to sustained pressure from a variety groups and a growing body of evidence that tens of thousands of young workers are being exploited through demands that they provide unpaid labour. Beyond that, recently there have also been a number of tragic deaths of young workers who were engaged in training programs and at least two of these deaths were associated with unpaid internship programs.
Getting governments to engage in proactive enforcement of the laws relating to unpaid internships has been one of the key demands from the intern rights movement, so it’s encouraging to see the Ministry of Labour starting to enforce the law. That being said, there’s still a great deal to be done to adequately protect young workers and students who are engaged in the school-to-labour market transition.
TW: What are the legal parameters of unpaid internships in Ontario?
AL: The legal parameters governing unpaid internships are rather strict in Ontario.
Unpaid internship are currently legal if part of a requirement of an academic program. In this case students are excluded from the protection of the Employment Standards Act, 2000, but would be covered under the Workplace Safety and Insurance Act and the Human Rights Code; furthermore, currently students aren’t covered under the Occupational Health and Safety Act, but there’s legislation currently being debated at Queen’s Park that would expand coverage to students and it should be passed sometime this fall. One important note is that if you decide to do an academic unpaid internship that isn’t a requirement of your academic program then you won’t be covered under the Workplace Safety and Insurance Act and won’t have workers’ compensation if you get injured.
Outside of being a requirement of an academic program unpaid internships are typically illegal. Under ss. 1(2) of the Employment Standards Act, 2000 employers have to adhere to a six part test if they want to use unpaid internships. Under the test, an intern can’t replace a paid employee, be paid, or provide any benefit to the employer. Essentially, it means that unpaid interns can’t be doing work for an employer and if they are then it’s a case of employee misclassification and they need to be at least receiving the minimum wage. There have been a number of cases looking at this issue and the law has evolved to be quite harsh towards employers to the point that non-academic internships simply aren’t legal in most situations.
TW: Why have employers, many of which are for-profit entities, been relying on free labour as a business model?
AL: There are a number of reasons. First, historically the law on unpaid internships hasn’t been proactively enforced by the Ministry of Labour, so for years there was unchecked growth of intern culture and the practice got entrenched in Ontario’s labour market. Second, up until recently there wasn’t a lot of attention paid to unpaid internship, so many employers were ignorant to the fact that Ontario has laws that address unpaid internships. Third, in the wake of the financial crisis there was trends across the economy for employers to cut costs and replacing paid employees with unpaid interns was an attractive way to save money. Fourth, young workers aren’t generally aware of their rights as employees and even when they are there’s a power imbalance that often leads people to stay silent about such issues. Fifth, Ontario has a jobs crisis and there are a huge amount of young people competing for a limited number of jobs, so employers often take advantage of the glut of young workers who need experience. Sixth, post-secondary institutions have been complicit in pushing unpaid internships on students and providing employers with a revolving door of students required to undertake unpaid labour.
TW: A common benefit many young workers see in an unpaid internship is the opportunity to gain experience or getting a-foot-in-the-door that could lead to a job in the future. What are the dangers of a ‘working for experience only’ mentality?
AL: The ‘working for experience only’ mentality is a dangerous one to have. Essentially you’re devaluing your labour if you work for free and future employers will notice. I’ve heard about hiring managers questioning potential hires about doing unpaid internships as it goes directly to the concept of self-worth, valuing your time, and self-advocacy. You don’t want to be pegged as the perms-intern. Moreover, the kind of organization that you want to work for will generally pay their students and interns. Employers are increasingly using paid internship programs as a talent acquisition strategy and my advice would be to limit job searches to these type of programs. If an employer isn’t willing to pay you a decent wage for your work then that should serve as a warning sign that the organization will attempt to exploit you in other ways.
TW: Students incur a great deal of financial burden: from rising tuition costs and loan repayments to living expenses. How are unpaid internships benefiting those of a more secure economic background?
AL: There’s an unsettling narrative that argues that unpaid internships perpetuate disparities related to socio-economic class, income inequality, and wealth inequality. What’s occurring within Ontario’s labour market at present is the trend where employers have somewhat successfully downloaded the costs of training new employees onto students, their families, and ultimately the public. Essentially unpaid internships socialize the risks associated with training new employees by demanding increasingly extreme amounts of unpaid labour. Students and young workers from wealthier backgrounds have a greater ability to engage in the unpaid labour that has become a necessity for entry into fields like journalism, law, or politics.
Unpaid internships have an impact on social cohesion and fuel income equality. We’ve created a labour market where access to entry-level positions is largely based on birth-status, socio-economic class, and the wealth of a person’s parents. These trends inhibit social mobility and decimates any notion of equality as many capable and talented students lose out on opportunities due to the inability to engage in unpaid labour. There’s a creeping cultural apartheid occurring as young people from historical marginalized groups are being shut out from critical professions which control the social, economic, and political level in Ontario. Simply put, the very social fabric of our province is being changed by the exponential increase in the amount of unpaid labour in the labour market.
TW: The current rate of youth unemployment in Ontario is the highest in Canada. Do you see a correlation between this statistic and the contention made by the University of Toronto Students’ Union (UTSU) that upwards of 300,000 Canadians are misclassified as non-employees or interns earlier this year? Are these figures interrelated?
AL: The youth unemployment rate in Ontario currently sits at 15.8% and clearly unpaid internships are playing into Ontario’s youth employment crisis. Precarious work and underemployment are increasingly becoming the new normal for young people in Ontario who are struggling to find good jobs that over the ability to carve out a life. Each year in Ontario well over a hundred thousand young people are forced into providing unpaid labour either through academic programs or due to the demands of unscrupulous employers. This is clearly an intolerable situation that’s having some very insidious effects on the labour market and the overall economy. Governments at all levels need to do a much better job of workforce planning and must create more active labour market programs to assist young people in the school-to-labour market transition.
TW: A great deal of your work and social media presence focuses on calling out organizations that are taking advantage of young workers. Have you found your own work gaining traction now that more eyes appear to be on the issue of unpaid labour in Ontario?
AL: I started researching unpaid internships three years ago and interest has been growing ever since. Now there are a lot of organizations advocating around this issue, politicians have taken up the cause, and we’re starting to see a statutory and regulatory response from governments. Throughout all of this social media has been critical in advocacy efforts as it’s a no-cost way to disseminate information to a large amount of people instantaneously. Using social media also allows for people, who may be geographically dispersed, to organize and rally support.