Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY Are interns being worked to death? Deaths spark call for changes; debate surrounds unpaid workers | BY LIZ BERNIER | "By and large, unpaid interns are entitled to minimum wage unless it's IT WAS SIX in the morning and Andy for academic credit," she said, adding Ferguson was halfway through the that in many — if not most — cases, hour-long commute home from his unpaid internships are actually illegal. internship in Edmonton. "There are a lot of really frustrated He'd worked the morning shift fol- young people (who feel) like employers lowed by an overnight, with very little are taking advantage of high youth time off in between. That night shift unemployment rates." was one of several Ferguson worked as Still in school herself, Seaborn is a part of his unpaid practicum at Astral third-year law student at the University Media. of Ottawa. But this time, he never One of the biggest made it home. Ferguson problems, she said, is EMPLOYMENT was killed in November interns don't feel they STANDARDS 2011 after his car crossed have any legal representainto oncoming traffic durtion or recourse if they ing his drive home. are being mistreated. A student in the radio and TV broad"There's a big lack of awareness on cast program at the Northern Alberta interns' parts — they don't feel that Institute of Technology (NAIT) in employment laws are there to protect Edmonton, Ferguson was working as them, because they're not being paid," both a paid employee and unpaid intern she said. "In fact, they should be using at Virgin Radio and the Bear, an FM those laws to help protect (themrock station, to fulfill work require- selves)." ments for his post-secondary program. Seaborn has already seen it done His story has been making headlines successfully, particularly in one Canain recent weeks as the Alberta govern- dian case where former intern Kyle ment has launched a review of post- Iannuzzi filed a complaint against his secondary practicums in response to former employer — and won. Platinum his death. Ferguson's local MP, Brent Events Group was forced to pay him Rathgeber, is also pushing for federal more than $900 in back wages. legislation limiting the hours interns But, in many cases, interns may feel can be asked to work. too intimidated or be otherwise relucThe renewed political push comes tant to speak up for themselves, said on the heels of another death — that of Seaborn. Moritz Erhardt, a Merrill Lynch intern "Unfortunately, it's so difficult when who passed away after working all day someone fresh out of university (or) and overnight for three consecutive currently in university wants to make days. Erhardt was a 21-year-old Ger- a good impression," she said. "It's man intern working in investment really difficult for them to try to stand banking in the United Kingdom. up against an employer for wages, for These tragedies have come to repre- overtime pay, because they want to sent the worst-case scenario in the make a positive impression." unpaid internship debate. But there are A high cost many more unpaid interns who put themselves at risk every day — all for Unpaid internships can have a steep internships that may not even be legal, cost to the employer as well, according said Claire Seaborn, founder and pres- to Toronto employment lawyer Andrew ident of the Canadian Intern Associa- Langille, who operates Youth and tion. Work, a website where he examines emerging legal and policy issues regarding young people in the workplace. The legalities of unpaid internships are complicated, as there are statutory exclusions that may apply and the rules differ depending on the province's employment standards legislation, he said. "Law shifts from province to province," said Langille. "If there's a general rule, it is that a lot of the time unpaid internships for students are legal due to statutory exclusions. But, that being said, unpaid internships that either students would do in the summer, or that people who have graduated from university or college typically do, they're typically illegal across Canada." There are some legal ways to facilitate an unpaid internship in Ontario, he said, noting that there is a six-part reverse onus test in which employers must prove the intern is not a regular employee. "But the legal loopholes are difficult for an employer to jump through," he said. Even if the legal criteria are met, in some cases internships may still violate the human rights code, said Langille. "The problem employers are facing — now that people are exploring the human rights angle of it — is that damages are involved, and damages can be quite high." If a human rights tribunal finds that an employer has been systemically exploiting young workers, the employer can face significant damages and orders for remedies that may keep the tribunal involved in their workplace for years, said Langille. But fines, orders to pay back wages, provincial prosecution and human rights tribunal claims aren't the only things employers risk. Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 9 7

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