A person who performs work for an organization is an employee, unless he or she is in business for themselves. As an employee, he or she is generally entitled to all of the rights under the Employment Standards Act, 2000 (ESA) including minimum wage.
There are some exceptions, but they are very limited. Unpaid internships are illegal under Ontario law unless they fall within an exception.
One possible exception is a trainee. Trainees, however, will generally be considered to be employees for the purposes of the ESA and therefore must be paid, unless all of the conditions below are met:
- The training is similar to that which is given in a vocational school
- Some benefit is received by the trainee from the training, such as new knowledge or skills.
- The employer derives little, if any, benefit from the activity of the trainee while he or she is being trained.
- The trainee does not take someone else's job.
- The employer is not promising a job at the end of the training.
- The trainee has been told that he or she will not be paid for his or her time.
The ESA does not prohibit an employer from hiring as an employee someone who was a former unpaid trainee who met all six of the conditions above.
Another exception concerns college and university programs. The ESA does not apply to an individual who performs work under a placement program approved by a university or college of applied arts and technology.
Finally, the ESA does not apply to true volunteers,such as a person helping out a neighbour or friend or volunteering at a charity. The legal test for a true volunteer arrangement looks at several factors, but merely agreeing to work without pay does not in itself make an individual a volunteer.
For more information visit the Ministry of Labour's webpage.