Unpaid interns a potential liability for employers

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When the summer carries employees from their fluorescent-lit cubicles to holidays in presumably sunnier climes, B.C. businesses are invariably left with workplace holes to plug.

A popular solution for employers has been to bring in an intern, usually a young person or a new graduate eager to gain on-the-job experience.

“The biggest problem is that often businesses hear the word intern or hear about internship programs in other places and they’ll assume an intern is something different from an employee,” said Elizabeth Reid, an employment lawyer at Vancouver’s Boughton Law. “And that’s just not the case.”

The B.C. Employment Standards Act (ESA) grants interns almost all the same rights as employees, including compensation.

While narrow exceptions exist for regulated work-study programs and certain government-funded job creation programs, the ESA defines an internship as work that must be compensated.

“If the duties performed by interns fall within the definition of ‘work’ contained in the act, the intern falls within the definition of ‘employee,’ and the agency using the services of an intern falls within the definition of ‘employer,’” the ESA states.

“Internships will be considered ‘work’ for the purposes of the act.”

Reid said businesses are often unaware of their obligations to pay interns, a detail that has come back to bite notable Vancouver companies.

Hootsuite came under fire in April 2013 when it posted job openings on its website asking interns to make a three-month commitment to work 40 hours a week without pay.

Following an internal review and a tongue-lashing from Reddit users, CEO Ryan Holmes offered back pay to unpaid interns who worked at the social media management company within the preceding six months. The company had been soliciting applications for unpaid work years prior to that.

Reid said in the worst-case scenario, employers could end up in court dealing with complaints from interns who either were injured on the job or never received compensation for their duties.

She cautioned that over the last six months, B.C.’s Employment Standards Branch has accelerated its complaint processing.

“If you are facing a complaint you can be required to be in a mediation within 30 days of the complaint being made,” Reid said.

“So if people are looking at it thinking … ‘Six months from now when it gets processed through the system then [the intern has] probably given up and they don’t care anymore’ – that’s not the case. They’re processing things quite quickly these days.”

Reid said interns and employers should sit down together at the outset of the internship to discuss compensation and even termination in the event an intern does not meet expectations over a summer internship.

“Whether you had a written agreement or not, you’ve got a term contract with that person,” she said. “There could be liability there for you to pay them for the rest of the summer.”

torton@biv.com

@reporton

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