PROVISO: IANAAL (i am not an anal lawyer), this post does not constitute a legal opinion, and it pertains to mushy rules laid out by the Ontario Ministry of Labour; your level of confusion with the mushy rules expressed in your own state or province may vary.
Do You Hear the People Sting?
Sometimes the law makes it very difficult to do the right thing.
Jean Valjean was sentenced to hard prison time for stealing a loaf of bread to feed his starving family. (But then he learned to hold a note in a wicked falsetto and everything worked out in the end.)
If i could solve my own problems with falsetto singing, i’d have exactly zero problems. Except maybe shattered windows.
i was recently personally attacked on Twitter by law school grad Andrew Langille, who runs a website advocating for young workers’ rights. Andrew is not a fan of unpaid internships, and regularly points out their illegality to corporations that offer them.
i asked him if i’ve earned some sort of trophy or something, to which he replied:
Where’s the Beef?
i run an internship program at Untold Entertainment from my gold-plated throne sitting atop Asshole Mountain (where the air is somewhat shitty). With very few exceptions, the interns i hire are completing co-op placements with accredited post-secondary institutions, which the Ontario Employment Standards Act allows. So everything is hunky dory and on-the-level.
Very occasionally, i’ve brought on individuals who are not in school to complete internships. This is where things get sticky. i want to lay all that stickiness out on the table so that we can all try to parse it together.
Of note: this sticky-mouthed Spellirium monster unsuccessfully auditioned for the role of Jean Valjean.
Problem, Meet Solution
Here are the facts about Untold Entertainment: unlike some of the other companies offering unpaid internships that Langille (rightly) bemoans – like ad agency Taxi and media juggernaut Bell Canada – Untold is a very small, very struggling shop with three fully-computered, fully-softwared office seats that we don’t yet have the means to fill with paid employees … not even at the Ontario minimum wage of $10.25/hr. (We do contract out some piecemeal work, and pay for it – but that work is sporadic, not steady.)
One of these things is not like the others.
At the same time, Ontario colleges are all clamouring to offer video game design and development programs because they’re a big fat milky mooey cash cow. These colleges and universities are pumping out unqualified grads at an alarming rate, flooding the market with inexperienced hopefuls who can’t find employment.
i started offering the Untold Entertainment Internship Program to help alleviate both problems: we have a lot of empty office space, software, hardware, and my twelve years of expertise that are not being put to good use, and a great many grads are stuck in that familiar work/experience catch-22. i prefer to run a lively office filled with people making games, learning about the industry and gaining valuable experience, so i will occasionally bring in non-student interns.
When i first brought on an intern who wasn’t part of a school co-op program, it dawned on me that i needed to check the legality of unpaid internships in Ontario. Here’s what i found out: if someone at your office is an employee, you need to pay him minimum wage at the … you know, at the minimum.
However, the Ministry lays out six guidelines under which an individual can be considered an unpaid trainee, rather than an employee. Here are those guidelines:
- The training is similar to that which is given in a vocational school.
- The training is for the benefit of the individual.
- The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.
- The individual does not displace employees of the person providing the training.
- The individual is not accorded a right to become an employee of the person providing the training.
- The individual is advised that he or she will receive no remuneration for the time that he or she spends in training.
All six guidelines must be met – you can’t hit them a la carte. By my own interpretation, the Untold program meets five out of six requirements handily. Five out of six.
The Third Law
The tricky one is number 3. If the trainee is providing absolutely no benefit to the trainer, why is the trainer even bothering? Under what crazy circumstances would you just train someone for free, making sure that none of the work they did during their training was at all usable or functional?
Langille (who deleted his attack tweets when i casually mentioned Ontario’s rigorous libel laws), involved the Ontario Ministry of Labour Twitter account so that they could teach me what for. The exchange was frustrating:
(the link at the bottom of the tweet leads here, to the six rules i just outlined)
The word that got my goat was “generally”. In an ideal world, law should not be general. Something’s either legal or illegal. Law should not say “Sue Me Maybe”. So i poked at the Ministry, who responded with this:
The Ministry likes to play dodgeball.
Whoever’s running that account really knows how to push my righteous indignation buttons. i, as a conscientious tax-paying citizen of sound mind, should reasonably be able to read and interpret my government’s laws in order to obey them. i should not have to pay hundreds of dollars to a lawyer to obtain a legal opinion. But unfortunately, law doesn’t work like that. You do what you do, you take your chances, and you pray that you don’t get sued.
Who You Gonna Call?
The @OntMinLabour twitterer suggested i call the Ministry to clarify things. i called their bluff and rang them up. The first lady i spoke to, Bernadette Ward (who curtly identified herself only as “Mrs. Ward”, prompting me to withdraw the offer of my first name in retaliation … how playground of me) was unable to find anything in the Ministry’s interpretation manual that could help. (Interpretation manual?? Gah!) So she forwarded me up the bureaucratic food chain to someone with presumably sharper teeth.
The second lady, a long-time veteran of the Ministry, was more helpful in clarifying that the rules, as written, are entirely unclear. She provided me with one single example – her only example – where she felt those six rules were being properly adhered to: bus drivers. A bus driving company takes on an unlicensed trainee who sits in a classroom learning about how to drive a bus.
- The training is similar to that which is given in a vocational school. (Check – driving a bus is a vocation.)
- The training is for the benefit of the individual. (Check – the trainee learns how to drive a bus.)
- The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained. (SPURIOUS! See below. But according to the Ministry lady, the company derives no benefit … since the trainee can’t drive a bus, the company is not allowed to put him to work doing bus-driving work.)
- The individual does not displace employees of the person providing the training. (Check – you can’t displace an employee if you’re not legally licensed to drive a bus)
- The individual is not accorded a right to become an employee of the person providing the training. (Check … there’s no right to become a driver, but again, i find this one pretty dodgy. See below.)
- The individual is advised that he or she will receive no remuneration for the time that he or she spends in training. (Check.)
i hope it goes without saying why i take umbrage with points 3 and 5 above, but i’ll say it anyway: the entire purpose of the bus company providing free training is so that they can create qualified workers to have an experienced pool of potential employees to draw from. So the company does derive benefit from offering the training, and while the trainee has no right to employment, i’m willing to wager that a decent number of those trainees find themselves driving a bus for the very company that trained them. That is, unless i’m mistaken, and bus companies provide free training so that newly-licensed drivers can go accept jobs from their competitors.
Have i completely missed the bus on this point?
The nuance that the Ministry lady pointed out was that the bus driving trainee provided little or no benefit while he was being trained … any benefit provided after the fact, when the trainee becomes an employee, does not enter into it.
If the provisions for an exception case are so narrow that the Ministry can only identify one acceptable exception, why make the exception to begin with? Just call it illegal, plain and simple, and cut out the ambiguity and confusing language.
Entering Into It Lightly
To make matters more subtle, the Ministry expert brought up volunteering. Obviously, i can happily put in volunteer hours at my church and never be entitled to compensation. Ministry Lady talked about golf courses who take on retirees whose “job” it is to schedule grounds times for club members. They do this in exchange for free golf time. In this situation, the volunteer is doing work, is not receiving training, and is not being paid the minimum wage … yet is somehow neither a free trainee (as above) or a paid employee. Ministry Lady said that it all has to do with how the company and the individual entered into the arrangement.
When i enter into an arrangement with rare non-student interns, i actually show them the six Ministry of Labour guidelines, and i say that we need to adhere to those guidelines in order to make it work. i do usually ask them to sign something, although i’m well aware that you can’t contract yourself out of your rights. The signed agreement is to document how we entered into the arrangement – as trainer to trainee, as employer to non-employee, as volunteer in exchange for coaching.
As for the tasks i ask non-student interns to complete, they could possibly be construed as work. Past non-student interns have never worked substantially on paid client projects. They have chipped away at unreleased games, and have futzed around with Untold’s side projects, like our web game portals. i suppose that in order to be completely in line with that 3rd proviso, the “work” i ask these non-student interns to do should just be stuff that i throw away.
Hey, New Guy. i’d like to teach you some programming. You’re going to work on a video game that i will later discard. No one will ever play it or even know of its existence. How’s that sound?
Who wants to sign up for an internship where they’re just given pointless busy work that gets discarded? The vast majority – and by that i mean 100% – of experience-seekers would like a credit on a released game, because that’s the standard by which they’re judged at any game studio where they apply for work. It’s a real shame that there exists this disconnect between the needs of industry and its young workers, and the nebulous rules of the Ministry.
How to Be An Apparent Scumbag
Untold Entertainment plays by the rules, to a fault. We buy all our software, we remit payroll taxes, we sign contracts, and we do right by people. Our internship program is an attempt to help people and to give back to the industry – not to cynically exploit young people for our own selfish gain (and don’t be fooled by the jokes we crack about our busted coffee maker). Based on what i learned from Ministry Lady’s “clarification” of these mushy rules, here’s what i recommend (obviously, do not take this as legal advice):
If you want to help someone out by offering an unpaid internship, go for it. The two situations where you may get hurt for all your do-gooding are:
- The Ministry of Labour randomly pegs you for an investigation, finds you in violation of their Act, and slaps you with a fine. (After all of this, i may be due for a “random” visit from the Ministry.)
- A jilted ex-intern files a claim with the Ministry, demanding back-pay.
If you treat your people well, and if those people don’t want to get themselves blacklisted in the industry they’re trying so desperately to break into, the second case likely won’t crop up. Just roll the dice. If you’re worried, set up some sort of Emergency Lawsuit Fund where you’ve saved up the amount of back-pay someone might try to dig out of you (but naturally, if you can shore up that amount, you should just be paying that out in wages to the intern to begin with).
The Ministry investigation is interesting. Ministry Lady told me that the investigator looks at the company employee records that i am compelled by the Act to keep, and makes a judgement. i said “but if unpaid interns aren’t employees, i don’t have to keep records on them?” In a Douglas Adams-esque twist of bureaucratic logic, she replied that no, i’m not required to keep records on non-employees … but if an investigator deems a non-employee to have been an employee, i will have been required to keep employee records.
Get your head around THAT one.
i asked her how that actually plays out in a claim. She said that if an intern kept records saying “i worked from 9-5 every day for 4 months”, and the employer kept no records, it’s possible that an investigator may side with the only party who purportedly kept records (even if those records are dodgy). So the safest, most ass-covering thing you can do, is to have unpaid non-student interns log their hours in your corporate system.
BUT … this point is moot unless a jilted ex-intern files a claim. If an investigator “randomly” came to my office and asked for employment records, i don’t know if i’d volunteer the intel that i worked with people on whom i wasn’t required to keep records. That strikes me as lunacy.
People Are Starving. Let’s Steal Some Bread.
The point is this: with their golf course volunteer and bus driver examples, the Ministry’s guidelines are clear as mud, and can only be proven out in a claim situation. The spirit of the guidelines as i read them, without paying hundreds of bucks to a lawyer, is that the Ministry doesn’t want companies firing paid employees and replacing them with free labourers because of a crowded market where people are desperate to work for free. That’s not what we’re about. If absolutely no one in this industry was willing to take an unpaid internship, Untold Entertainment would not just bite the bullet and hire paid employees. We can’t do that right now. We’d just keep an empty office until such a time as we could hire.
Aside from our successful co-op partnerships with Ontario schools, what we’re doing at Untold is occasionally taking inexperienced recent grads or industry hopefuls, providing them with work experience at a small studio, teaching them the ropes of how a small business is run (into the ground), placing them on secondary or non-mission-critical unpaid projects, and sending them out into the world with a far better leg up than when they started.
If that’s greedy or selfish or wrong, then sue me.