By Ryan Copeland

While it is said that any press is good press, the truth probably depends on your perspective.  One thing for certain is that Vancouver’s HootSuite definitely received some media attention regarding  allegations that its internships were in breach of the Employment Standard Act.

The story got a lot of people thinking about employee training programs in BC.  So what’s the deal?

Work: A Matter of Definition
The BC government has weighed in on the legal treatment of employer training programs in this province. Relying on the definitions of “work” and “employee” in the Act, the government has determined that the Act does not apply to persons working pursuant to a practicum, but that anyone performing “work” for an employer through an internship is entitled to the employment standards protections.

To understand the distinction, we have to first review the definitions of “work” and “employee” in the Act. “Work” includes labour or services an employee performs for an employer. Clearly, that definition is quite broad, and could include services of a person engaged in a practicum or internship.  The answer to our problem lies in the definition of “employee”, which includes:

• a person receiving or entitled to wages for work performed for another;
• a person an employer allows, directly or indirectly, to perform work normally performed by an employee; and
• a person being trained by an employer for the employer’s business.

Why a Practicum Differs
A “practicum” is not work because it is fundamentally about obtaining training for a specific educational program.  A practicum is just one step in a formal education process that is designed to provide students with supervised practical application of the theory or skills taught in their program.

Indeed, this “hands on” training is often a requirement of the curriculum, and leads to a certificate, diploma, or degree from a post-secondary institution.  To put this within the context of the above definitions, the purpose of the practicum is not directed at training a person “for the employer’s business”, nor is a person in a practicum performing work “for another”.  Rather, a true practicum is really about the education of the participants, meaning it is more accurate to say they are working for their own formal education than for a particular employer.

Internships Demand Dollars
An internship is on-the-job training offered by an employer to provide a person with practical experience; in that sense, it has clear parallels to a practicum.  That being said, an internship is different because it is typically offered to persons who have already completed their diploma or degree and are now seeking employment out in the “real world”.  Put differently, when such people complete their internship, they are looking to graduate to full-time employee status, not graduate from a particular post-secondary program.

To be fair, internships are often beneficial for the intern.  After all, the intern gets much needed job experience and may not have had such an opportunity if it was a paid position.

On the flipside, if employment standards did not apply, interns would be particularly vulnerable to potential exploitation.   At the end of the day, the decision to allow or prohibit unpaid internships is a government policy decision, and for now at least, our government has drawn clear line in the sand.

Weighing the Options
To be clear, both practicums and internships are great opportunities for employers and participants.  Choosing one over the other requires considerations of the particular advantages and disadvantages each option provides.

The upsides of a practicum for an employer include the potential of little to no wage costs (although many practicum positions are in fact paid), good public relations and community involvement, as well as the opportunity to get the jump on hiring the best and brightest from within post secondary training programs.  Unfortunately, if you’re looking for continuous labour solutions, a practicum may not be of much help, since the participant may well have to return to school in three months.

Internships hold many of the same benefits, with the key differences being that they arguably provide better recruitment opportunities due to the expectation that they lead directly to continued employment, with the tradeoff that they have to be paid.  That being said, it important not to place those wage costs in context.  That is, subject to labour market demands, employers can pay interns as little as the minimum wage prescribed in the Act.

Keeping that labour cost flexibility in mind, it’s a fair bet that employers will continue to use internships as an excellent tool in the years to come.

Ryan Copeland is an associate with Roper Greyell LLP, a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk Winter 2013)