Are Volunteers Unpaid Interns or Employees?
(Or…How to “Hire” a Volunteer).
The job market in a number of professions such as marketing, legal and non-profit has become increasingly competitive in recent years. It is not unusual for young professionals entering the job market to enhance their résumés by volunteering or completing internships.
Volunteering as an intern is a win-win scenario. For the individual interning it is an excellent way to gain experience. Many companies value the “try before you buy” approach to hiring. For the purpose of recruiting a volunteer or intern a company may wish to enter into a formal intern agreement, and to that end we have included a sample volunteer/intern agreement linked to this article.
Recruiting volunteers has led to some problems for employees and employees, often in the situation in which such volunteer positions carry with them the types of responsibilities and demands which would normally be expected from an employee. Based on the increase in unpaid positions in various industries, the Ontario Ministry of Labour (the “MOL”) has begun to ask the question: Are unpaid internships or volunteer positions legal?
The answer has proven to be surprisingly complex. Although an employer may call an individual an intern, by itself that is not enough to prevent a court from finding that the intern must actually be considered to be an employee who is protected under the Employment Standards Act (“ESA”).
The MOL has taken action to determine whether interns are being treated properly by employers. In a 2014 Blitz report, out of 56 well-known employers inspected for their internship practices, 13 employers had internship programs with ESA contraventions. These employers were handed compliance orders.
How these rules affect non-profit and charity organizations that engage volunteers is yet to be confirmed by the MOL. However, so long as a volunteer’s responsibilities do not mirror the responsibilities of an employee, a volunteer will not likely be found to be an employee.
To assist you in drafting an intern agreement we have supplied a sample intern agreement here.
In the event an unpaid internship issue is brought forward in a tribunal or court, the judge would consider a number of factors on a case-by-case basis to determine whether the individual was actually functioning as an employee.
This topic is still being hotly debated between proponents and opponents of unpaid internships, so keep an eye out for possible amendments to employment legislation.
The Ontario government has provided strict conditions for having an unpaid intern. Such conditions include:
- The training received by the intern is similar to training received in a vocational school;
- The training benefits the intern more than it benefits the organization;
- The internship is not a prerequisite for an employee position; and
- The intern is informed and consents to an unpaid internship.
Note that some experts have gone as far as saying that the organization should incur no benefit from the intern.
Since the rules on whether an intern is an employee are not crystal clear, it is a good idea for the hiring organization to consult counsel before entering into an intern agreement.