The time for regulating unpaid internships and studentships in the federal sphere has now arrived

In December 2017, legislative changes to Part III of the Canada Labour Code (the “Code”) were enacted to limit unpaid internships in the federally-regulated private sector. 

On September 1, 2020, supporting regulations under this legislation will come into force under the Code. The Standards for Work-Integrated Learning Activities Regulations (the “Regulations”) apply to both paid and unpaid internships in federally-regulated workplaces.

The Regulations establish the process for determining whether a student placement can be unpaid, the labour standard protections for interns such as minimum wage, maximum hours of work, weekly days of rest, protected leave and general holidays, as well as the administrative framework related to these new requirements.

Who is an intern?

The legislative changes made in December 2017 to Part III of the Code as it relates to standard hours, wages, vacations and holidays recognizes interns in two ways:

• Students undertaking a work-integrated learning placement with an employer to fulfill the requirements of an educational program. This includes students registered in secondary, post-secondary and vocational educational institutions, or their equivalents outside of Canada.
• All other individuals undertaking placements with employers to obtain knowledge or experience.

For clarity, in order to be considered an intern, the person must perform activities for an employer where the primary purpose is to enable the person to acquire knowledge or experience (e.g. a co-op student completing a work placement for a semester, or a recent graduate or new immigrant trying to “get a foot in the door” in their prospective field). 

On the other hand, individuals who give their time, energy and skills for public benefit of their own free will, without monetary compensation (e.g. a guest speaker or visiting member of the public) are not considered interns.

This categorization applies to interns in federally-regulated private sector workplaces, including:

• Interprovincial and international transportation
• Banks
• Telecommunications and broadcasting
• Grain handling
• Uranium mining and processing, and atomic energy
• First Nations Band councils
• Certain modern treaty areas
• Federal crown corporations

What rights and protections are interns afforded?

The Regulations extend important protections to interns. Notably, only student interns falling into the first abovementioned category may participate in an unpaid internship. Thus, unpaid internships will be limited to those that are part of a formal education program as described in section 2 of the Regulations. Students must provide specific documentation to the employer to demonstrate that their internship is part of their educational requirements before their internship may begin. The documentation must be issued by the educational institution or vocational school and must include notably the name and address of the educational institution or vocational school and the name of the program in which the person is enrolled as well as the contact information of a person who administers the program for the educational institution or vocational school. 

In addition, student interns will be entitled to a number of labour standard protections prescribed in the Regulations, including: 

• A limit of 40 hours/week and 8 hours/day, with at least one day of rest per week
• Right to a modified work schedule
• Unpaid breaks for every period of 5 hours of work
• Unpaid breaks for medical reasons or nursing
• 96 hours’ advance notice of a schedule
• 24 hours’ advance notice of a shift change or addition of a shift
• 8-hour rest period between shifts
• 9 general holidays within a calendar year
• Maternity-related reassignment
• Protected leaves (i.e. personal leave, leave for victims of family violence, leave for traditional Aboriginal practices, bereavement leave, medical leave, and leave for work-related illness and injury)
• Protections against genetic discrimination and prohibited reprisals

Interns falling into the second category will be treated as employees and will therefore be covered by all labour standard protections, including the right to be paid at least the minimum wage.

In addition to the above, the employers involved in these internships will be required to retain, for a period of three years, the records related to their interns and notably any documents from the educational institution as required above. 

Take-aways

Although interns have the same rights and duties as employees with respect to occupational health and safety, these new Regulations offer potentially vulnerable interns with important labour standard protections, with the objective of fostering a work environment where employers, students and educational institutions can leverage work-integrated learning opportunities more confidently, and promote a culture of trust and accountability conducive to stable and productive workplaces.

From the perspective of employers, these regulations may narrow the scope of their internship programs and notably their unpaid internships. This will also create additional administrative requirements for employers in terms of the approval of internships and record-keeping related thereto.

The author wishes to thank Colleen Dermody, summer student, for her help in preparing this legal update.