Summer internship programs can be a win-win: students gain valuable experience in their educational fields over the summer months, and employers tap into a pool of emerging talent. However, in Ontario, misclassifying interns can expose your organization to costly legal consequences. Before you bring interns into your workplace, it’s essential to understand the rules related to interns under the Employment Standards Act, 2000 (ESA).

Contrary to popular belief, in Ontario, unpaid internships are de facto illegal, unless the internship program falls within certain exceptions under the ESA. This article provides Ontario employers with a legal roadmap for hiring interns in compliance with the ESA and offers practical guidance to minimize risk.

Intern or Employee? The Legal Starting Point

Under the ESA, most people who perform work for an employer are considered “employees” and are therefore entitled to protections such as minimum wage, vacation pay, and hours of work limits. The ESA does not use the term “intern” in a way that exempts them from coverage. This means the label “intern” alone doesn’t determine whether someone is entitled to ESA protections.

In most cases, if a person is doing work that benefits the employer and would normally be performed by a paid employee, they are likely considered an employee under the ESA—regardless of what their position is called.

Statutory Exception: Educational Co-Op Programs

There is one narrow exception in Ontario that allows unpaid internships: students participating in formal educational work experience programs, commonly referred to as co-op programs. 

According to s.3(5) of the ESA, the following individuals are exempt from ESA coverage:

1. Students in authorized secondary school work experience programs;

2. Students in work experience programs authorized by colleges of applied arts and technology;

3. Students in work experience programs approved by universities; and,

4. Individuals in a program that is approved by private career colleges. 

This exception allows for unpaid internships that are part of a formal academic curriculum or academic work experience program. If the student is not receiving school credit or if the program is not one of the recognized types listed above, the intern must be paid at least the minimum wage and receive other ESA entitlements.

ESA Entitlements for Summer Interns

If your intern is not employed through a program that meets the educational exemption, they are an employee and entitled to statutory minimums under the ESA. This means they are entitled to:

• Minimum wage: Ontario’s general minimum wage is currently $17.20 per hour;

• Overtime pay: After 44 hours of work in a week;

• Public holiday pay: Including statutory holiday entitlements;

• Vacation pay: calculated at a minimum of 4% of gross wages; 

• Hours of work and rest periods: Including daily and weekly rest requirements.

• Termination notice or pay in lieu: If the internship is ended early or without appropriate notice.

There is no “volunteer” loophole when the person is doing productive work that benefits the organization.

Best Practices for Hiring Summer Interns

1. Assume the ESA Applies: Unless your workplace participates in a formal educational co-op or field placement program which meets the exemption under the ESA, assume summer interns are entitled to ESA minimums. 

2. Use Fixed-Term Employment Agreements: Seasonal and summer positions are not automatically considered fixed-term. As such, it is a best practice to employ summer interns with an employment agreement that clearly defines the start and end of the employment to prevent possible notice requirements at the end of the work term. However, if summer interns are invited to stay past the end of the term, it is important to seek legal advice to prevent common law reasonable notice entitlements upon termination. 

3. Don’t Forget Onboarding Training: 

• All employees, including summer interns, must receive basic OHSA awareness training as soon as practicable after starting work.

• Employers also have a responsibility to provide training on accessibility standards and the Human Rights Code as it relates to persons with disabilities during onboarding.

Conclusion

Internships can be a valuable way to support workforce development and attract future employees, but they must be approached with a firm understanding of legal obligations. In Ontario, the ESA provides only a narrow exception for unpaid interns—and the consequences for getting it wrong can be significant.

When in doubt, pay your interns or seek legal advice before launching a program. With proper planning and clear policies, your organization can create internship opportunities that are legally compliant, educational, and mutually rewarding.

Need help establishing or reviewing your summer internship program? Contact Workly Law to ensure legal compliance and avoid common pitfalls.

 

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