Guide to Unpaid Volunteers & Internships
The Employment Standards Act, 2000 (ESA), sets out the minimum wage that can be paid to an employee in exchange for their services; however, the act does not apply to volunteers and certain kinds of internships. The complication is that the ESA does not go as far as to define what constitutes a volunteer or unpaid internship.
TMU makes use of unpaid volunteers and internships in a variety of circumstances; this information helps managers to ensure that their use of unpaid volunteers or internships is compliant with the ESA.
When making this determination, the most important factor to consider is what are the specific tasks that are being performed by the individual? As a result, each position must be considered on a case by case basis.
An intern is an individual who is receiving training. Although the ESA does not define what an “unpaid internship” is, its broad definition of an employee does include “a person who receives training.”
Criteria for determining if position qualifies for an unpaid internship
In order for the intern to be unpaid and not considered an employee under the ESA, you must be able to answer “yes” to all of the following criteria:
- Is the training that they are receiving similar to that which is given in a vocational school?
- Is the training for the benefit of the intern?
- Does TMU derive little, if any, benefit from the activity of the intern while he or she is being trained?
- Can you confirm that the intern does not displace any TMU employees?
- The intern has not/is not promised a position at TMU following their training?
- The intern has been advised that they will receive no remuneration for the time that he or she spends in training?
The test for unpaid internships is very high, and few organizations are able to meet the above criteria, particularly questions 1 and/or 3.
The only exception to the above criteria under the ESA is for interns who perform work under a program that is approved by TMU, or another college or university.
A volunteer does not receive training, but instead performs services that are not in pursuit of their livelihood or skills. According to the Ministry of Labour “the fact that no wages were paid is not determinative of volunteer status”.
Criteria for determining if a position qualifies for an unpaid volunteer
While a firm list of criteria has not been provided by the ministry, the following factors have been considered by the Labour Board in previous decisions:
- The individuals do not consider their volunteering with TMU to be in pursuit of their livelihoods and have no expectation of payment for the services provided.
- TMU receives minimal, if any, benefit from the individuals.
- The individuals are not performing the work of paid employees at TMU.
- The individuals choose the type and nature of volunteering services rather than vice versa.
- TMU provides little direction and/or control over the individuals and allows them flexibility with respect to volunteering hours
- The economic imbalance between TMU and the individuals is not a factor in structuring the volunteering arrangement
It is recommended that unpaid interns or volunteers sign the (word file) Volunteer Consent, Release and Waiver prior to providing services to Toronto Metropolitan University.
The test for using unpaid volunteers and interns is high and not straightforward.
If you are not sure if your position should be classified as an “employee”, “volunteer” or “internship” under the ESA, please contact your HR partner.