Sunday, 14 October 2012

Unpaid Internships

Reading my twitter feed, one would think that the issue of unpaid internships was the hottest issue going. For some, like Andrew Langille (@youthandwork), perhaps it is; Andrew’s devotion and commitment to the issue is to be lauded. However last week Mr. Langille did something unexpected, he called out a friend of mine, Ryan Creighton (@UntoldEnt) of Untold Entertainment, for his use of unpaid interns.

The ‘attack’ raised an important question: are unpaid internships an exercise in employer exploitation or are they a legitimate attempt to provide vocational experience?
 

Disclosure


With full disclosure, I know Ryan Creighton from a previous life. He and I attended the same high school at roughly the same time, and my mother informs me that we went to church together before that; although I have zero recollection of same I also have zero reason to question my mother’s memory. Neither of us are “boomers.” A small part of me suspects that Mr. Langille may actually be older than Mr. Creighton. I like Ryan. From what I follow online, I think he has many admirable qualities as a father, human being, and teacher. I have no idea what he is like as an employer, but I somehow suspect that what I like about him in his other roles is probably true of him as a boss.

I don’t know Andrew. We’ve never met. That said, from what I see online we do seem to generally align ideologically with respect to employment-law issues. Although I may be about to unravel that.

So, with those caveats out there, one can return to the issue at hand: is Untold Entertainment, beloved maker of children’s games, and notorious user of child labour, running an unpaid intern scam, as was the charge of Mr. Langille?

Untold Entertainment’s Position


In an October 5th post, 6 Simple Rules for Hiring my Teenage Daughter, Mr. Creighton takes the position that he is not running an unpaid intern scam, although he unabashedly offers anunpaid intern program

In his post, Mr. Creighton, who notes that he is not a lawyer, points out that the ambiguous nature of the legislation governing unpaid internships; a fact that he goes to length to bemoan. Mr. Creighton points to six “guidelines under which an individual can be considered an unpaid trainee, rather than an employee.” Mr. Creighton cites the Ontario Ministry of Labour as his source of these guidelines. He is likely correct in that the Ministry would provide reference material listing these factors, but to be more correct, what these “guidelines” are, are part of the definition of “employee” in the Employment Standards Act, 2000 [what I will call, "the ESA".]

This is where things get tricky, so stay with me.

Section 1 of the ESA provides that, as used within the ESA “employee” includes “a person who receives training from a person who is an employer, as set out in subsection [1](2).”

Subsection 1(2) provides that,

For the purposes of… the definition of “employee”… 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.

So, to Mr. Creighton’s point, provided that the above six condition are true, his interns are not “employees.”

Mr. Creighton’s post focuses on two main themes: (1) in his opinion his company is deriving little benefit from the individual being trained; and (2) in his opinion, the program provides more benefit to the trainee than to the employer in any event, so it’s for the greater good. This is my reading of his positions, of course.

Mr. Langille’s Position


In his October 9th reply, Scaling Asshole Mountain (And Other Adventures In Nerdistan), Mr. Langille takes issue with Mr. Creighton’s interpretations of the definition of “employee.” To wit, Mr. Langille’s characterization of Mr. Creighton’s post is as follows:

What strikes me about Mr. Creighton's troubling blog post is the pure arrogance that it betrays through a hysterical defence of exploiting young workers for free labour all the while portraying himself as a victim and a helpless employer. Rather than owning his actions he pushes back in a sarcastic manner that exposes some interesting points.

With respect, Mr. Langille never takes on Mr. Creighton’s direct points. Mr. Langille simply points out how Mr. Creighton is demonstrably doing things incorrectly and then takes issue with those who violate the ESA by providing such ‘programs.’

While Mr. Langille makes a number of valid points in his post, I remain unconvinced that he has directly addressed Mr. Creighton’s argument.

Who Wins?


At least one of the two ‘combatants’ directly asked me for my opinion on this issue. Against my better judgment, and after much consideration, I have decided to weigh in on the issue.

As I say, I see both sides’ argument. Mr. Langille demonstrably loathes the idea of unpaid work, and Mr. Creighton takes issue with being demonized for what he sees as a worthwhile effort.

At this point I do not have enough information about the extent of “work” being performed by Untold Entertainment’s interns or the benefit Untold would derive therefrom to determine whether Untold is abiding by the six conditions of section 1(2) of the ESA. It would therefore be imprudent for me to provide any sense as to whether or not Untold is offside the ESA.

Who’s Right?


As to Mr. Creighton’s larger point, which is essentially contra Mr. Langille’s, that these interns need, and perhaps may want, this sort of program in order to enable them to gain that Catch-22 workplace experience before obtaining a ‘real’ job, my opinion is that Mr. Creighton is the victor.

Most employers want experienced applicants applying for positions. Most post-secondary academic institutions provide little by way of actual vocational experience; a reality Mr. Creighton knows all too well.

I know Mr. Langille’s point, by permitting unpaid internships the systems of paid work, and minimum standards (included wages) are comprised. By allowing companies such as Untold Entertainment to not pay workers, I term I use intentionally, the purposes of the Employment Standards Act and all labour efforts over the past century are defeated.

So what is the answer? Some will argue that all unpaid work must be abolished; by doing so a level playing field is established so that no one may offer an unpaid internship program. Employers will have to take on “employees” and pay them the minimum-prescribed wage. This is an answer that I could get behind.

However, that is not the present state of the law, rightly or wrongly. Nor is the direction in which I see North American labour standards headed.

To achieve Mr. Langille’s objectives what is required is a complete systems approach, from educational training to employment standards. Again, this is a notion behind which I could get.

However, until that system is reached (and the cynical part of me doubts that it ever will be), efforts to provide that much-coveted “experience” must be permitted to continue. 

If Untold Entertainment (like any employer) can afford to pay its interns, then it should. If, however, Mr. Creighton is to be believed, that Untold Entertainment simply does not presently have the means to pay anyone, but is nonetheless willing to provide a learning opportunity from which it will derive little to no benefit, then I see nothing wrong with their intentions.

The modern workplace is complicated. I don’t know the answer. But I do love the discussion.

Sean Bawden

7 comments:

  1. Dear BFF of Ryan,

    I don't know any of you (Bawden, Creighton, or Langille). Reading your post here then Creighton's blog then lastly reading Langille's blog - I can't help but feel you're trying to justify unpaid internships on behalf of your BFF. Did you owe him a favour from high school?

    Interesting opinion you have as a labour lawyer justifying your bff position not paying employees. Lets clarify your position as a labour lawyer for other employers; so when times are tough we are allowed to take advantage of the unemployed students?? Please, clarify for your readers and me. I'm confused. One labour lawyer states it illegal (Langille) and you state otherwise. Please, for your readers how can you justify your position? Based on what law? As an employer this interests me. I'm eager to read your response based on actual law rather than what you feel sounds right.

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    Replies
    1. Anonymous:

      I’ll start by saying that Ryan and I are hardly BFFs; I cannot tell you when last I saw him.

      Am I trying to justify unpaid internships - on behalf of Creighton - no. The point that is missed in your comment is that one is never justified in not paying “employees” – but Ontario's Employment Standards Act recognizes that there can be occasions where workers are not “employees.”

      Creighton’s argument would appear to be his interns are not “employees.” Whether or not they actually are “employees” is the debate.

      To clarify my position, provided that an employer can demonstrate that they satisfy the six conditions of subsection 1(2) of the Ontario Employment Standards Act, 2000, i.e. that the person ‘working’ for them is not an “employee”, then there is nothing legally wrong with not paying them.

      Whether one will meet the six conditions is always a question of fact, which is why I cannot comment on Untold’s actual situation.

      I support giving people an opportunity to advance themselves. I support people earning real wages. I support employment standards. But, I am also not quick to judge.

      SPB

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    2. Howdy,

      Could you elaborate on what is considered an "employee" then for your readers?

      I am still confused. One labour lawyer states it's illegal and you sound like you're taking the opposite position on unpaid labour. Who is right? Who is wrong?

      Could you answer this, please. I'm in a very similar predicament as Ryan with unpaid labour. Is hiring/educating an intern/volunteer/employee legal if they do work of a paid employee and receive no compensation other than experience?

      Please clarify your position for myself and your readers. Are unpaid interns/volunteers/employees legal?

      Thanks,

      A

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  2. The definition of "employee" is contained within the Employment Standards Act, 2000. (http://canlii.ca/t/30f)

    As to whether any particular fact scenario is on-side or off-side, that would require a thorough review of the actual facts, upon which we could provide an opinion.

    If you have an actual circumstance on which you'd like an opinion, then I'd be happy to have that conversation off-line.

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  3. Based on what you understand from Ryan's blog posting (and/or conversation) what can you extrapolate from the facts presented? Does he or other employers have an opportunity to legally hire unpaid labour without repercussions based on the facts presented?

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  4. No answer. The factors that would have to be considered certainly go beyond what is represented in one simple blog post.

    Again, if you want an opinion on plans you may have - or are in a situation with which you disagree, I would be happy to review the actual facts and provide an opinion.

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  5. Interesting article and also even more interesting perspectives in the comments below. Thanks for sharing this with us, makes for a good read

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