This week, the CBC reported on a family in Alberta who is voicing concern over the lack of protection afforded to interns in Canada. Their story stems from the death of their son, Andy Ferguson, who crashed his car after falling asleep at the wheel. The Ferguson family believes Andy was exhausted from the long shifts he was pulling at Astral Media. Andy was a student in the radio and TV program at the Northern Alberta Institute of Technology (NAIT) in Edmonton. He had to complete a four-month unpaid practicum for Astral Media’s local pop rock radio stations in order to graduate. He was also putting in shifts as a paid intern, over and above his student hours. Throughout this time, Andy was asked to work erratic hours, with little or no notice or direction. When Andy would refuse to work long hours, the company allegedly threatened to withhold his practicum credits, and prevent him from graduating. On the day of his death, Andy had put in 16 hours in a 24-hour period- with very little rest in between shifts.
Following Andy’s death, the Ferguson family filed a complaint with federal labour authorities, claiming Andy was forced to work excessive hours without adequate rest. The Ministry of Labour concluded that by excluding Andy’s “student hours”, his hours did not exceed the statutory standards.
Andy’s story is but one in what seems to be a growing list of internship horror stories.
For instance Jainna Patel, an unpaid intern with Bell, filed a complaint with federal authorities in May 2012, claiming that the company’s program violated labour laws by not paying her for work she did for the company. Jainna complained that she was often asked to stay after hours to do phone surveys that benefitted the company, but had little or no educational value for her. In May 2013, federal authorities wrote to Bell, directing the company to pay Patel, or submit reasons why it disputes her claim. The dispute remains unresolved.
The vast majority of internship stories in the media stem from misclassification of employees as interns and consequently often relate to unpaid wages. What is apparent from Andy’s story, however, is that wages are not the only minimum standards interns can be denied.
For federally regulated companies like Bell and Astral Media, the Canada Labour Code doesn’t spell out specific rules for interns and as such it is not clear whether the restrictions on hours of work (48 hours per week); provision of breaks; and other minimum employment standards applies to this class of employees. Companies often classify employees as interns by stating that the individual is taking advantage of training and learning opportunities provided by the company.
Despite the legislative silence, “work” is given a broad definition as using or engaging the services of another. In Ontario, provincially regulated employers have to meet six conditions to justify not paying an intern, including giving training that benefits the intern and reaping no benefit from the work the intern does. Given the liberal definitions “employee” and “work” have under the statute, not all “training” or internships, especially when performed for a long period of time for the benefit of the company, can escape these definitions. This begs the question why so many young people are denied basic employment standards merely because they are ignorant of their rights, or otherwise unwilling to voice their concerns for fear of losing their footing in a tough, unpredictable market. The power imbalance that exists between employers and youth employees seems to be just the type of gap in employment law that legislation is meant to address.
The provision of basic employment standards does not necessarily have to lead to a requirement that employers pay for services, unless the service benefits the employers. Given the prevalence of questionable internships, and the impact that overwork and poor employment conditions can have on individuals, legislative silence on these arrangements, and the rights of those working under these arrangements – including hours of work and rest periods - does not seem consistent with the spirit on which employment standards purport to be based.