youth and work

No Wage Ghetto: Unpaid Internships in Ontario's Retail Sector

2013-05-13T16:13:00.000-04:00

The growth of unpaid internships in Ontario's labour market is alarming. Traditionally, the highest incidents of illegal unpaid internships have been found in the glamor industries (i.e. magazine publishing, public relations, media, and fashion), but increasingly we're seeing a creep of these positions into both low-wage (i.e. hospitality, retail) and high-wage sectors (i.e. law, health-care).

Today's blog post is focused on a recent example of unpaid internships in Ontario's retail sector. Unpaid internships in the retail sector are on the rise and there has been little coverage of this disturbing trend. The example I'm using comes to us courtesy of Untitled and Co., a Queen West clothing store specializing in sexist anti-women sweatshirts, which recently posted an advertisement asking for multiple unpaid interns. Untitled and Co. is looking for: a Sales Intern, a Design Intern, a Production Intern, and a Merchandising Intern.

The advertisement targets students needing hours to graduate and recent graduates looking for experience. The advertisement discloses probable violations of the Employment Standards Act, 2000 as typically you have to pay employees the minimum wage of $10.25 per hour. Simply put, the circumstances where an employer is allowed to not pay the minimum wage are extremely limited. What Untitled and Co. are attempting to do is mostly the unholy (but common) combination of wage theft and employee misclassification.

I fail to see the educational benefits of working in retail store and this raises an issue of whether post-secondary educational institutions should be letting employers access free labour via students. Another issue that this advertisement raises is whether the Ministry of Labour needs to drastically step up enforcement efforts around unpaid internships. With unpaid internships creeping into low-wage sectors we're be seeing the decimation of the youth labour market, wages driven down, and certain sectors of the population crowded out of work altogether.

See the advertisement from Untitled and Co. below and feel free to call them at 647-748-3114 if you don't like what they're selling. Take a look at some of my previous articles about unpaid internships, see: here, here, here, and here.

Why Can't Wind Mobile Pay Their Interns?

2013-05-09T14:08:00.000-04:00

Just a short post today. Canadian telecommunications companies are among the worst offenders when it comes to exploiting young workers in Canada. Misclassification of employees as interns and wage theft seem to be quite common in the industry. Previously, I've detailed the human resources practices of Bell Mobility in their Professional Management Program, but what's occurring at Bell Mobility happens with alarming regularity at the other telecommunication companies as well (see this article about Rogers).

Today the Canadian Intern Association posted an article detailing how Wind Mobile is hiring a score of unpaid interns and failing to pay them the prevailing minimum wage (which is $10.25 in Ontario). This is massive company with access to huge amounts of money, so it's disgusting that they would choose to engage in this highly questionable (and arguably illegal) practice. Examples like this point to the need for proactive enforcement of minimum employment standards within the Federally-regulated sectors - an area that has been totally neglected by Stephen Harper and Lisa Raitt.

Under the Canada Labour Code unpaid internships are prohibited when the intern is performing work. Under "Hours of Work - 802-1-IPG-002", a policy directive published by Federal Department of Labour, it states that training scheme of longer durations where a person is performing aspects of a job a de-facto employment relationship develops and the person must be compensated for the hours that they work. Legalities aside, posting multiple unpaid internships like this reeks of exploitation by a corporate giant that could easily pay the minimum wage.

Working This Summer? Know Your Rights

2013-05-07T01:12:00.000-04:00

Today I'm appearing on CBC Radio's Ontario Today (tune in after 12:30 pm to listen to me) to discuss the topic of "crappy summer jobs". I thought that I would collect a few resources that young workers and their parents can use to navigate the world of work. I'm going to highlight five main areas: how to find a job, occupational health and safety, employment standards, human rights, and tips to protect yourself.

How To Find a Job?

If you're a young worker who needs a job for the summer your first stop should be a youth employment centre. First Work offers a list of youth employment centres in Ontario and even has a searchable map. Beyond going into a youth employment centre, a tried and true method is searching online - websites like Jobbank, Eluta, Monster, Wowjobs, and Workopolis contain thousands of postings across the province. Another good technique for finding work is networking with family, friends, and people you know in your community.

Occupational Health and Safety

Far too many young workers are injured or killed on the job every year in Ontario. Ensuring that you're safe at work is critical. Whether it be working with chemicals, around heavy machinery, or dangerous tools - you need to be aware of the environment that you're working in. The critical piece of law in this area is the Occupational Health and Safety Act.

The Ministry of Labour offers a number of online resources about staying safe at work. Check out this tip sheet, these podcasts, and these health and safety tools. If you get injured at work then you should realize that you may be entitled to compensation under the Workplace Safety Insurance Act via the Workplace Safety Insurance Board ("WSIB"). The WSIB has a section of their website devoted to educating young workers about staying safe on the job.

If you need help with a health and safety related issue, these numbers are key: Ministry of Labour - 1-877-202-0008, WSIB - 1-800-387-0750, Office of the Worker Advisor - 1-855-659-7744.

Employment Standards

Every year tens of thousands of young workers in Ontario are the victims of employee misclassification, wage theft, and illegal deductions. For the most part the Ministry of Labour refuses to proactively enforce employment standards when it comes to young workers, so it's incumbent on you to understand your rights in the workplace. The Employment Standards Act, 2000 ("the ESA") contains protections in the areas of minimum wages, hours of work, overtime, and days of rest.

The Ministry of Labour's website contains some information about employment standards - there's a good workbook covering the main parts of the ESA, and FAQ for young workers, and tools for calculating wages, overtime, and vacation pay. If you need help with an employment standards related issue the best number to call is the Ministry of Labour at: 1-800-531-5551.

Human Rights

No one should tolerate discrimination or harassment in the workplace. Sadly, young workers are frequent targets for illegal abuse in Ontario's labour market. The key piece of law in defending your human rights is Ontario's Human Rights Code. This law outlines the obligations that employers have in creating an environment that respects employees human rights. The Ontario Human Rights Commissions lacks specific resources for young workers, but has published a summary about resolving human rights issues in the workplace, an overview of how the Code applies to employment, and an introduction to human rights in Ontario.

If you need help on a human rights related matter here are some organizations to contact: the Human Rights Tribunal of Ontario - 1-866-598-0322, the Human Rights Legal Support Centre - 1-866-625-5179, and the Ontario Human Rights Commission - 1-800-387-9080.

Tips For Protecting Yourself

There's no exhaustive list about how to protect yourself in the workplace, but I've come up with a top five list of sorts. In no particular order here's my list. (1) If you're having a problem in the workplace talk it out with a friend, a parent, a teacher, or someone you trust. (2) Keep track of all the hours you work. (3) Keep copies of your employment contract, emails with your boss, and any other documentation you receive. (4) Trust you gut. If something seems wrong, then it probably is. (5) Make sure you're being paid the minimum wage. For the vast majority of workers it's $10.25. Unless you're cover under an exemption you should be paid it.

Fair & Prosperous? Ontario's 2013 Budget in Review

2013-05-03T02:33:00.000-04:00

Yesterday the 2013 Ontario Budget was introduced. I wanted to put out some commentary on what's contained within the budget: the strengths and weaknesses and where we're heading as a province. I'm going to review the impacts arising out of the budget on issues related to youth unemployment, labour relations, and poverty reduction.

Overall, this is an austerity budget which continues to inflict significant harm on the most vulnerable segments of the population such as public sectors workers, the working poor, students, and people receiving social assistance. There is no chance Andrea Horwath, the NDP leader, will risk an election given the NDP lacks a war-chest and is plummeting in the polls - so what we're left with is an austerity-lite budget based on creeping neoliberal orthodoxy.

Youth Labour Market Strategy

A marquee piece of the budget is a new "Youth Jobs Strategy" which is a demand-side labour market intervention. The strategy will dole out $295 million via four separate funds. The main thrust comes via the "Ontario Youth Employment Fund" which will fund up to 25,000 jobs for youths. The exact structure of the program is unclear, but it appears that the program will use wage subsidies and grants to fund employment and training opportunities.

The other three funds deal with entrepreneurship, innovation, and connectivity. Of particular note is the $30 million "Ontario Youth Innovation Fund". This will fund post-doctoral research focused on industrial research and commercialization. It will also provide funding to centres at post-secondary institutions which focus on start-ups (i.e. Ryerson's DMZ or Waterloo's VeloCity).

It's good to see that youth un(der)employment has gotten some funding from the government, but given the scale and depth of the generational scarring inflicted in the wake of the global financial crisis this should only be considered a start rather than a "final solution". There's certainly an acknowledgement from the Wynne government about the problems facing youths - this is a complete 180 from the McGuinty years which were characterized by a profound rejection of any sort of intergenerational equity.

Public-Sector Labour Relations and Pensions

One part of the budget that I don't like is the Wynne government's insistence that public sector workers not receive any wage increases until 2018; however, I suspect this is posturing given the unlikelihood of any further legislated collective agreements following the disaster that was Bill 115. There's also some significant changes to pension plans in the public sector with the government moving towards pooled asset management which was main recommendation arising from the Morneau Report released last fall.

Proactive Workplace Inspections

If you follow me on Twitter you'll know that one of my big pet peeves is that the Ministry of Labour isn't terribly good at enforcing the Employment Standards Act, 2000 and they simply refuse to conduct proactive inspections of companies that are illegally exploiting unpaid interns. This might change though given that an additional $3 million in permanent funding has been committed to hire additional Employment Standards Officers and conduct proactive inspections. The Workers' Action Centre in Toronto has been pushing for this funding for years and they're efforts should be commended.

Social Assistance

I typically don't discuss social welfare policy on this blog. I have some strong opinions in this area as I worked in a number of legal clinics during law school and witnessed firsthand Ontario's primitive and cruel approach to "helping" the poor. The changes announced in the budget amount to little more that scraps for people living in poverty. There was a minimal increase in how much money people receive each month and some cosmetic changes to what people can earn before the government starts ~~taxing~~ clawing back their income. The budget also indicates that parts of the Lankin-Sheikh report will begin to be implemented over the coming year. This was a major report on the state of social welfare policy in Ontario and it contained some controversial proposals that some might say are regressive.

What Wasn't In The Budget?

One thing that troubles me about the budget is that it doesn't propose measures to help some of the most vulnerable groups in our society. There was a lack of concrete action on increasing the minimum wage in Ontario - it's pretty hard to survive in Toronto, Hamilton, or Ottawa when you're only making $10.25 (the current price of a beer at the Skydome). Following along in that vein is a lack of action on precarious employment in Ontario. Wynne has been sitting on two major reports on precarious employment (the United Way's report and the Law Commission of Ontario's report), but has yet to announce any form of response. Finally, students continue to be shafted with excessive tuition fees - this is an issue that needs a sustainable solution and it's high time Ontario examines eliminating tuition fees altogether (like the rest of the world).

Confronting Tip Theft: An Interview with MPP Michael Prue

2013-04-18T16:42:00.000-04:00

NDP MPP Michael Prue has been relentlessly trying to enact legislation that cracks down on the problem of tip theft in the hospitality industry in Ontario. Given that a large number of young workers are employed in restaurants, bars, and coffee shops I thought that this issue deserved some coverage. In that vein this blog post is going to examine the issue of tip theft and then interview Mr. Prue about his motivations in championing this issue.

Is Tip Theft a Problem in Ontario's Labour Market?

I have a lot of friends who work in the hospitality industry. Over the years I have heard frequent complaints about employers stealing tips. I have also spoken with friends who own or manage establishments who acknowledge that tip theft is an incredibly common practice across the hospitality industry. My take on the issue is that tip theft is a widespread, day-to-day practice that employers use to increase profitability at the expense of their employees.

Tip theft can occur in various forms, but some common examples are "tipping out" practices where employers require employees to give them a certain percentage of their tips or straight up tip theft where employers require employees to remit all their tips and keeps them for their own use. Employees face an uphill battle if they want to fight to get their tips as most employees in the hospitality industry are precariously employed, the industry has a low unionization density, and employers can fire people who complain with near immunity or repercussions.

Employees working in the hospitality industry face any number of structural and systemic barriers to having adequate protections in the workplace. Oftentimes employees are members of historically marginalized groups and face oppression by virtue of their gender, being racialized, having recently immigrated, or being a young worker. Beyond this, getting traction around addressing tip theft is difficult due to lobbying efforts from anti-worker/pro-inequality groups like the Canadian Restaurant and Foodservices Association which advocates on behalf of large corporations which profit off illegal exploiting workers.

Tip theft is part of the wider problem of wage theft in Ontario's labour market. Wage theft is a problem that impacts a large swath of workers in variety of sectors and with remarkable variations. Some common examples of wforage theft are employers penalizing gas station attendants for gas-and-dash thefts (often with deadly consequences), employers forcing employees to work overtime without proper compensation, or misclassifying employees as interns to avoid the obligations of workplace laws (i.e. paying minimum wage or making EI/CPP contributions).

What's the History of the Tip Theft Legislation?

Mr. Prue initially brought forward his Private Member's Bill on tip theft in 2010 and then again in 2012. The revived legislation initially got a cold reception from the then Minister of Labour Linda Jeffrey who brushed aside the issue by stating "I think that they need to have that relationship clear at the very beginning of the employment history. We want employers to treat their employees fairly, and if they are not treated fairly they should speak to the Ministry of Labour." That may have remained the Government's position, but then then Premier Dalton McGuinty intervened. He stated that he was concerned about tip theft and ordering Ministry of Labour to closely examine Private Member's Bill.

The old incarnation of the Bill died when Mr. McGuinty resigned and prorogued the legislature this past fall. Mr. Prue has again introduced his Private Member's Bill in the legislature and it appears that either it will pass or the Liberals will introduce their own piece of legislation addressing the issue of tip theft. The current incarnation of the legislation - Bill 49, Protecting Employees' Tips Act, 2013 - is quite short and amends Part V.1 of the Employment Standards Act, 2000 by adding the following provision: "14.1 An employer shall not take any portion of an employee's tips or other gratuities." A simple fix for a widespread problem impacting countless employees on a daily basis.

An Interview with MPP Michael Prue

I asked a number of questions to Michael Prue about his Private Member's Bill and his motivations for bringing forward the legislation. He was kind enough take the time to respond to my questions and his answers appear below. After the interview there's a video where Mr. Prue discusses an older incarnation of tip theft legislation.

MPP Michael Prue

Q: Can you tell my readers about the reasoning behind Bill 49, Protecting Employees' Tips Act, 2013 and what motivated you to take up this issue?

A: All my best policies come from constituents. In this case a server from an upper scale restaurant in the Beach came to me with her complaint. It seemed impossible that her employer could take her tips with impunity. I found out from the Labour Ministry that there was no protection for tips only for wages, hence my subsequent actions.

Q: Why is tip theft a major problem in the hospitality industry?

A: Tips are intended to compensate people for giving good service not for padding the profits of employers. Servers make $8.90 per hour on the supposition that they will get tips. If they are not getting them then they are making $54 a week under minimum wage for all other employees (based on 40 hour week).

Q: What do you make of the criticisms being levelled at Bill 49 by the Canadian Restaurant and Foodservices Association (i.e. the legislation unfairly impacts owner-operators and managers or that tip theft isn't a major problem)?

A: It is a problem they choose to ignore. Some of their members champion their right to take their employers money. It is illegal in other provinces and some U.S. states.

Q: Tip theft is part of the wider problem of wage theft in the labour market. Despite a large body of research showing that wage theft is growing problem the Ministry of Labour isn't doing much to crack down on employers who are breaking the rules. Why do we have sustained governmental inaction on this issue?

A: They're powerful lobby groups. Servers, hairdressers, cab drivers, and chambermaids are mostly unorganized and afraid of losing their meagre incomes. The Ministry of Labour is powerless because tips are not included in the law.

Q. Young workers comprise a large segment of the workers employed in restaurants in Ontario. Do you think the Ministry of Labour could be doing more to protect the rights of young, precariously employed workers? If so, what could the Ministry of Labour be doing that they aren't doing now?

A: The majority of servers are part time, young or recent immigrant workers. Because of their youth, inexperience, or lack of sufficient time in Canada they are susceptible to abuse. The Ministry needs to advertize and inform workers in a broad range of media to stamp out egregious practices like: tip-outs to management; dine and dash abuses; breakage. uniform purchases; credit card charges; and, a myriad of other things that tip-outs can be assigned to make employers pay for restaurateurs expenses.

Learn about Councillor Ana Bailão's illegal unpaid internship scam.

2013-04-16T01:33:00.000-04:00

Ana Bailão, the embattled City of Toronto Councillor for Ward 18, has been advertising for a number of unpaid internship positions to assist her "core office functions and special projects" (the advertisement appears below). Councillor Bailão is following in the rich history of other Ontario politicians who have exploited young workers. Over the last three years I've documented various breaches of workplace law at different levels of government, see: Liberal MPP Laura Albanese, the former Parliamentary Secretary to the Minister of Labour illegally used interns; Sarah Thomson, the one time Mayoral candidate, exploits young journalists at the Women's Post by illegally misclassifying as interns; and, Rob Ford, Mayor of Toronto, engaged in wage theft to squeeze unpaid overtime out of his political aides in the 2010 municipal election.

The positions that Councillor Bailão is advertising for simply are not legal. She wants persons that can make a minimum commitment of 8 to 16 hours a week. The duties of the positions are: socia media monitoring; drafting letters and other correspondence; data cataloguing; canvassing; event coordination; research on local and city-wide policy initiatives; translation; delivering event notices; community asset mapping; and, completing forms and graphic templates.

Councillor Ana Bailão

What Councillor Bailão wants is free labour for the summer, but that isn't possible under the Employment Standards Act, 2000. What is described in the advertisement doesn't fall under any of the exclusions enumerated under the ESA; particularly, these positions would not fall under the exclusion enumerated under ss. 1(2) of the ESA as the interns would be providing a substantial benefit to Councillor Bailão and the City of Toronto through the provision of their labour. Beyond the law, the question is why would a politician feel it was appropriate to request young people to work for free?

Now, one might be wondering what benefits Councillor Bailão will bestow on her unpaid ~~slaves~~ interns? Well, the interns stand to gain inside information, referrals, recommendations, a letter of reference, and professional experience. These internships are a great example of the "pay to play" mentality that is pervasive in intern culture - the person provides free labour for the opportunity of exposure to a certain industry. It also highlights how internships are inaccessible to large segments of the youth population who aren't wealthy enough to engage in prolonged periods of unpaid labour.

The actions of Councillor Bailão are problematic on a number of fronts. She's contributing to the high youth unemployment rate in Toronto through undercutting the labour market and driving down wages for young workers. Next, she is leaving the City of Toronto open to legal liability via breaches of the ESA, but also by exposing the city to the possibility of a class action lawsuit (Bailão clearly isn't the only person using unpaid interns at City Hall). Finally, she sets a very poor example for others in the community as in not paying her interns the minimum wage she's essentially stating that their work has no value.

Toronto has an abundance of educated young people, but if their talents aren't put to use there will be any number of negative impacts on our economy. Poor youth labour market outcomes are associated with any number of social ills such as higher crime, weaker economic growth, and lack of political engagement. Currently in Toronto there are very serious problems with youth un(der)employment, the lack of good jobs, and increasing numbers of youths being forced to engage in precarious employment. It's a shame that politicians like Ana Bailão appear ignorant of one the greatest challenges facing Canada at present: finding stable, secure employment for young Canadians.

In closing, here's some articles discussing youth unemployment in Toronto, see: here, here, and here. The advertisement from Ana Bailão appears below, see:

Is wage theft Gordon Nixon's new initiative aimed at "helping" young people?

2013-04-13T03:47:00.000-04:00

Between being caught outsourcing forty-five jobs to India, the visceral outrage of Canadians on social media, and a textbook PR disaster - by any measure RBC had a rough week. The eventual point-man in the temporary foreign worker saga was Gordon Nixon, RBC's CEO, who attempted to defend the indefensible through a series of poorly messaged appearances and ill-conceived crisis management.

One thing point that caught my attention was the eighth paragraph from Gordon Nixon's open letter, it read: "Fourth, we are preparing a new initiative aimed at helping young people gain an important first work experience in our company, which we will announce in the weeks ahead." An interesting tactic, but is RBC really interested in helping the throngs of unemployed youths in Canada? I would suggest that they're not.

Natalie Pickett, RBC Associate

I came across an advertisement for an unpaid internship with RBC Dominion Securities (the full ad appears below). The contact person for RBC is Natalie Pickett who is an Associate with RBC in Scarborough. RBC is looking for an Research Assistant to generate new clients, develop seminars, copy edit newsletters, design direct marketing campaigns, and research special projects.

This intern wouldn't be paid, but RBC is looking for a 4th year student or recent graduate for approximately four months of unpaid work. Business, finance, or marketing majors are preferred and having the Canadian Securities Course would be a bonus. The advertisement states RBC is "looking for a candidate that is self confident with good communication skills, highly organized and can work independently in a fast-paced environment while multitasking."

In 2012 RBC posted $7.5 billion in profit. The idea that they can't pay their interns is offensive. What's on display here is flaunting the ability to exploit students desperate to gain a foothold in the labour market. This internship is also illegal as unpaid internships are prohibited under the Canada Labour Code (RBC is a Federally-regulated employer) as unlike Ontario's Employment Standards Act, 2000 there are no exclusions from employment standards protections for unpaid labour or unpaid training (not that this is training, it's work). This is textbook intern misclassification, blatant wage theft, and an abhorrent violation of employment standards.

I should note that this is not the first time I've caught RBC running an illegal unpaid internship scam. Two years ago I wrote a blog post highlighting York University's practice of advertising illegal unpaid internships on the school's career services website and RBC Dominion Securities had an advertisement up at that time. I found the latest advertisement on York University's career services website, so there is a pattern of illegal exploitation of interns by RBC over a number of years.

This is another illegal and morally questionable human resources practice from one of Canada's largest corporations. It's a bit rich for Gordon Nixon to trot out the prospect of giving young people jobs while behind the scenes his company is exploiting countless unpaid interns. Sadly, this appears to be just another supremely shady attempt by RBC to subvert employment standards and place risk entirely on the backs of the misclassified ~~employee~~ intern.

Misclassification of employees has a rich history within Canada's banking sector. Currently, both Scotiabank and CIBC are facing class action lawsuits alleging that their employees (mostly females) were systematically denied wages for the overtime they worked. This is a type of wage theft that targets vulnerable workers which is analogous in many ways to wage theft perpetrated against unpaid interns. RBC itself has been the target of a misclassification class action lawsuit, RBC Capital Markets settled a Fair Labor Standards Act claim in the United States brought by securities brokers who were misclassified as professional employees.

The problem in all of this is that the Human Resources and Skills Development Canada's Labour Program does not properly regulated internships much like the lack of regulatory oversight with the Temporary Foreign Workers Program. Under the watch of Stephen Harper enforcement efforts in the area of labour standards have been non-existent. Minister of Labour Lisa Raitt is openly hostile to any form of workplace protection and is quite content with letting employers blatantly violate whichever laws they feel like.

Hopefully RBC will see the error of their ways and start paying their interns a decent wage, but I'm not holding my breath. For some previous articles on rich people exploiting interns, see: here, here, here, and here. Take a look at RBC's advertisement below.

Shocker: Human Rights Tribunal of Ontario Supports Illegal Unpaid Labour

2013-04-11T02:30:00.000-04:00

I've been asked by a number of people to comment on the recent decision from the Human Rights Tribunal of Ontario ("HRTO") in Rocha v. Pardons and Waivers of Canada. This case is one of the first decisions in Ontario addressing the legal rights of persons providing unpaid labour to an employer. This blog post is going to provide a comprehensive background on the facts in the case, overview what happened within the litigation, and then critique the extremely problematic approach the HRTO has adopted.

The Background

So what are the facts in the case? Essentially, this case is a straight-up age discrimination claim with an unpaid labour twist. The applicant in the case, Lina Rocha ("Rocha"), was completing a pre-employment support program with MicroSkills. To successfully graduate from the Microskills program Rocha was required to obtain a six-week unpaid work placement at an employer.

Rocha applied for a "personal assistant/receptionist" position with Pardons and Waivers of Canada ("Pardons") that she found on Kijiji. The advertisement read "[l]ooking for a personal assistant/receptionist for a sales associate at Pardons and Waivers of Canada. Basic admin duties, some accounting and answering the phone. $11/hours, Approx. 30 hrs/week." Rocha then received a response from Julie Hosson ("Hosson"), an employee of Pardons, after which a series of emails were exchanged discussing the possibility of a placement with Pardons. Rocha's initial application indicated that she was graduating from MicroSkills, she was looking for a "placement" or employment, and that she was willing to work "for 6 weeks free". Hosson then inquired via email "what field is the placement for? Is this for high school or University".

Hosson then invited Rocha for an interview via an email, but then followed-up with a telephone call asking Rocha how old she was. Rocha responded that she was forty-five years old to which Hosson said she would have to confirm the interview with her boss. Shortly after this exchange Rocha received an email from Hosson stating "I've been advised that a placement is not suitable for this position but I am looking [unreadable] comes up". Rocha understood that she was not being considered for this position.

Rocha felt that she had been discriminated against by Pardons' actions and filed an application with the HRTO in 2011. She alleged that Pardons had breached ss. 5 and 23(2) of Ontario's Human Rights Code ("the Code"). S. 5 deals with discrimination on the basic of prohibited grounds in the context of employment, while s. 23(2) deals asking questions about prohibited grounds in the context of job applications.

The Litigation

There were three decisions from the HRTO in this case. The decision of July 31, 2012, is mostly procedural and deals with Pardons' failure to file a response. The decision of November 29, 2012 ("November 29 decision"), deals with the substantive legal issues. The decision of April 3, 2013 ("April 3 Decision"), explicitly deals with the issue of remedies. I'm dealing with the later two decisions in this blog post and specifically with the treatment of the issue of unpaid labour.

It should be noted that this case is interesting in that it deals with an older worker who is re-entering the labour market after an absence. A situation which placed the worker in a position of heightened vulnerability to discrimination. Rocha was clearly facing intersecting forms of oppression in re-entering the labour market: she is a woman, coming from a lower socio-economic background, and is a older worker with a tenuous attachment to the labour market.

The November 29 Decision

The November 29 decision found that if Rocha had worked for Pardons it would have been considered "employment" under the Code regardless of whether the work was paid or volunteer. This reasoning flows from a well defined line of cases: Brown v. Robinson (1989), 10 C.H.R.R. D/6286 (B.C.C.H.R.); Thambirajah v. Girl Guides of Canada (1995), 26 C.H.R.R. D/1; and, Nixon v. Vancouver Rape Relief Society (No. 2) (2002), 42 C.H.R.R. D/20. It must be understood that the instant case was relatively novel for Ontario in the context of human rights law. The key takeaway from this decision being that interns, students, unpaid trainees, and apprentices are clearly covered under the Code - this approach is consistent with the broad goal of the Code to ensure that Ontario citizens have human rights protection.

The decision found that Rocha had been discriminated against by Pardons; furthermore, it also held that Rocha hadn't provided enough information with respect to what remedy she wanted beyond the $3,960.00 requested for lost wages and that a teleconference would be held to hear further evidence on the remedy issue.

The April 3 Decision

The April 3 decision is somewhat complex, but here's what happens. The decision finds that Rocha lost an opportunity for further employment in that Pardons denied her a job. Three approaches to assessing the quantum of damages arising from the lost of opportunity are reviewed with the third approach being utilized for the decision. The key line of cases in this decision is: Seguin v. Great Blue Heron Charity Casino, 2007 HRTO 33 (CanLII); Dantu v. North Vancouver District Fire Department (1986), 8 C.H.R.R. D/3649; and, McKinnon v. Ontario (Ministry of Correctional Services), [2007] O.H.R.T.D. No. 5. The Seguin decision awarded the applicant 50% of their lost wages. In a similar vein decision finds that Rocha had a 50% chance of continuing in her employment with Pardons past the six week period of unpaid work.

Then the decision states that Rocha had a duty to mitigate her losses by making reasonable efforts to find suitable employment - on this point Rocha found similarly situated employment on December 3, 2011, having lost out on seventeen weeks of work and $5,610.00 in wages due to the discrimination. Now in her application Rocha only requested $3,960.00 is compensation for lost wages. The compensation requested was based on a straight calculation (30 hours per week x $11.00 per hour x 12 weeks) and was based on the suggestion of Rocha's supervisor at MicroSkills after the issue of discrimination was discussed.

In the end, the decision orders that Rocha receive $1,815.00 in compensation for the lost opportunity of working for Pardons. This works out to be compensation equivalent to 5 1/2 weeks of employment. The reasoning adopts the 50% discount utilized in the Seguin decision. The decision explicitly subtracts the six weeks that Rocha was willing to work unpaid, stating at paragraph [13] that "[c]ounting from the first full week of August 2012, until December 3, 2012, when she found another job, and subtracting the six unpaid weeks, this would have amounted to eleven weeks of employment."

The reasoning deployed in this decision is a fundamental error of law with extremely serious ramifications going forward for workplace law in Ontario. In actuality, Rocha should have received $2,805.00 for the lost opportunity of working for Pardons rather than the $1,815.00 she was awarded. There should have never been a "discount" for Rocha's willingness to work unpaid for the duration of six weeks.

The decision also awards Rocha $15,000.00 for a violation of her inherent right to be free from discrimination and for injury to her dignity, feelings, and self-respect. This amount is related to the age discrimination that Rocha experienced in Pardons' decision to deny her an interview after learning that she was forty-five years of age.

The Critique

HRTO Vice-Chair Judith Keene penned the decisions in Rocha v. Pardons and Waivers of Canada. She is a highly experienced human rights lawyer and one of the senior members of the HRTO. Therefore, it is surprising that she made such a serious error. What Keene has essentially used judicial fiat to exclude Rocha from the minimum floor of rights contained in the Employment Standards Act, 2000 ("the ESA").

Given that the vast majority of the cases that the HRTO deal with involve discrimination in the context of employment I'm troubled that a basic tenet of workplace law in Ontario (i.e. the impossibility of an employer or employee to contract out of the social minimums contained in the ESA) was either ignored or not understood. The prohibition on contracting out appears at s. 5(1) of the ESA, it reads: "[s]ubject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void." Simply put, Keene lacked the authority to utilize Rocha's willingness to work unpaid for six weeks in limiting the quantum with respect to the lost opportunity award.

Let me explain my reasoning here. Rocha was responding to an advertisement posted by Pardons seeking an employee, she wasn't responding to advertisement seeking a student. The job advertised by Pardons was intended as a paying position involving administration, accounting, and receptionist duties. Rocha does fall under any of the exclusions permitting unpaid labour enumerated under the ss. 1(2) or 3(5) of ESA or s. 2(1) of O. Reg 285/01. Rocha had no ability under the ESA to consent to unpaid labour or contract out of the minimum wage given that the duties correspond with those that an employee is typically paid for in Ontario. Keene provides no legal justification or statutory authority to ground her reasoning in allowing Rocha's hypothetical unpaid labour to go unremunerated.

This is the second decision in little over a year that butchered the part of the award relating to wages for a vulnerable, precariously employed worker. Last January HRTO Vice-Chair Ken Bhattacharjee wrote a disgusting decision that held that an intellectually disabled woman was only entitled to a wage of $1.25 per hour. In effect, Bhattacharjee re-victimized the woman by discriminating against her on the basis of her disability in finding that she was undeserving of the prevailing minimum wage for her labour. Bhattacharjee's deeply problematic decision led to an expensive reconsideration hearing after the Human Rights Legal Support Centre intervened to represent the woman and defend her interests. It's unfortunate that the body tasked with protecting fundamental human rights has taken to regularly issuing deeply flawed decisions that offend the dignity of the very people seeking protection.

Additional Commentary

I have previous written about the intersection of unpaid labour and human rights, see: here, here, here, and here. Professor David Doorey wrote a commentary on the November 29 decision and Doug MacLeod, an employment lawyer, wrote an article discussing the age discrimination aspect of this case. I'm going to write a follow-up this post at some point with a blog post discussing the impact of unpaid labour, returnships, and discrimination on older workers when they are re-entering the labour market.

The Truthiness of Bruce Feldthusen

2013-04-02T23:37:00.001-04:00

For the past year I've been critiquing the actions of Bruce Feldthusen, the Dean of Common Law at the University of Ottawa. My ongoing commentary has centred around the explosive growth that the school has undergone during the tenure of Feldthusen and his public statements about the articling crisis in Ontario. This will be my last article on Feldthusen as his term as Dean ends in July.

I want to draw your attention to an interview (read Part 1 and Part 2) that Feldthusen recently gave to Inter Pares, the law student newspaper at the University of Ottawa. Simply put, Feldthusen engages in some of the most cynical, divisive commentary that I've ever seen from a university administrator. Throughout the interview he freely attacks lawyers, the law society, other law schools, and sadly his own students.

Bruce Feldthusen

I'm not going to engage in a point by point critique of Feldthusen's comments as it would be somewhat pointless and time-consuming. I will say thought that his comments seem par for the course in that he shifts blame, engages in an attempt at revisionist history, and denies any role in creating the articling crisis in Ontario. He covers a lot of ground in the interview such as tuition, the Legal Practice Program, the enrolment levels, international legal education, and the state of the profession.

One point that I will raise is that this interview may be the closest anyone ever gets to an explanation about why the law school brazenly increased enrolment to excessively high levels. Some difficult questions need to be answered about the role of the Ministry of Training, Colleges, and Universities in allowing the enrolment to increase and whether the proximity of influential members of the Liberal Party of Canada within the University of Ottawa administration gave Feldthusen the political cover to boost enrolment numbers to unsustainable levels.

The only legacy that Feldthusen will be leaving is a black mark on the legal education in Ontario and that of being a key player in tanking the labour market (and economic prospects) for countless young lawyers. The arrogance emanating from Fauteux Hall as of late has been shocking and the faster leadership arrives the better off faculty, students, alumni, and Ontario's legal profession will be. On a side note, the situation in the law faculty has degraded to the point that precariously employed students working as research assistants at the law school are being openly attacked by Feldthusen for exercising their rights under their collective agreement which seems to be odd behaviour coming from a law school striving to be known as a leader in "social justice".

For my previous articles discussing Feldthusen and the situation at the University of Ottawa see: here, here, here, and here. Since Feldthusen has denied any responsibility for the articling crisis I leave you with this banger from Shaggy (which actually spawned a legal defense):

Why can't Sarah Thomson pay her interns?

2013-03-25T18:29:00.000-04:00

Update: Sarah Thomson had one of her ~~writers~~ lackeys write a mea culpa of sorts (read it here). It's quite bizarre and terribly written, but seems par for course in Sarah Thomson's lalaland.

What's up with politicians (and wannabe politicians) asking young people to work for free? Three years back I caught Nick Kouvalis (Rob Ford's campaign manager) bragging about committing wage theft and then in January I caught Liberal MPP Laura Albanese (ex-Parliamentary Secretary to the Minister of Labour) advertising for an illegal, unpaid internship. Today I stumbled upon a Craiglist advertisement from the Women's Post looking for an unpaid intern (screenshot above). Unbelievably, the ad states "yes, we know unpaid internships suck", yet it goes on to state that the interns will only receive transit costs and a letter of reference.

The Women's Post is owned by Sarah Thomson (Toronto's favourite dreadlocked hippie) and her husband Greg Thomson. Sarah is also the former mayoral candidate, the former Liberal candidate in Trinity-Spadina, and a freshly-minted transit advocate. Greg is a member of plutocrat Thomson family (they own Thomson Reuters, The Globe and Mail, and The Woodbridge Company).

Sarah Thomson

The advertisement states that the intern will be "learning the ropes of copy editing, producing content, sales, and all the ins and out of working in a publishing environment". The language arguably raises the prospect of wage theft, employee misclassification, and multiple breaches of the Employment Standards Act, 2000 (read the MOL's guidelines here). I should note that this isn't the first ad I've seen from the Women's Post looking for interns - it seems that the Women's Post uses a revolving cast of interns. There's a deeper question in the offing though: why would a person with political ambitions see it fit to not pay young people working for them? This is particularly pressing question as the employers in this case are incredibly wealthy.

Unpaid internships aren't a positive development for our economy, rather this type of precarious employment is exactly the opposite. Unpaid internships unfairly target young female workers, exacerbate income inequality, privilege wealthy students over poorer ones, give companies that use them an unfair competitive advantage, and drive down wages across the labour market. None of these are trends that should be encouraged. I for one would like to see the Ministry of Labour take enforcement action against the Women's Post and ensure that employment standards are being adhered to. Beyond this, it should be stated that there is nothing normal with refusing to pay young workers a wage - this goes to person's character and is a indicator of whether they are fit to hold public office.

Unpaid internships bad for economy, young workers

2013-03-15T14:01:00.000-04:00

The prevalence of unpaid internships is growing, but typically these positions are illegal and violate the minimum employment standards. It has been estimated that young workers engage in over 300,000 illegal unpaid internships every year across Canada and collectively forego tens of millions of dollars in wages, vacation pay and contributions to Employment Insurance and Canadian Pension Plan.

Internships have existed in some form since the 19th century, but have only been thrust into the public consciousness over the past few years. Originally, internships were a variation on the American version of the apprenticeship model and a means of rapidly training young workers for entry into a trade or profession. What began in medicine slowly entered a limited number of elite, male-dominated professions (such as politics and public administration) in the early 20th century.made

Over the past 20 years there was some growth in the prevalence of unpaid internships in the world of journalism, fashion and publishing; however, these positions were the exception rather than the rule. In the wake of the global financial crisis, many employers in a large number of industries used the bad economy as an excuse to cut labour costs and begin exploiting young workers via the use of unpaid labour.

Unpaid internships have a direct impact on the economy through contributing to youth unemployment, driving down wages, slowing economic growth and allowing employers to replace paid employees with unpaid, misclassified ones. Profound equality questions also arise from unpaid internships, given that these positions privilege wealthy students over poorer ones, predominantly target female-dominated occupations, exacerbate income inequality and force young people to take on higher levels of debt to sustain unpaid work.

Students and young graduates are sold the idea of working for free with promises of experience, references, networking opportunities, acquiring new skills and the “potential” of an eventual, paying position. Most of the time internships do not act as a door to stable, secure employment as apprenticeships or entry-level jobs often do. For a lucky few, unpaid internships can lead to a well-paying job, but for the vast majority of youths, internships only lead to insecurity, precarity and alienation from the labour market.

Locally, many prominent organizations use unpaid interns — examples include UBC, the U.S. State Department, the British Columbia Civil Liberties Association, the Vancouver Whitecaps, St. Joseph Media and the Vancouver Aquarium. It does not appear that the use of unpaid interns in B.C. has reached the epidemic levels seen in Toronto, New York, London or Washington; however, it is clear that thousands of young workers in B.C. face exploitative conditions where they are illegally misclassified as unpaid interns.

Under British Columbia’s Employment Standards Act ("the ESA") unpaid internships are prohibited and there is a strict prohibition on unpaid work. Under the ESA, all work, defined as providing labour or services to an employer, must be remunerated at the minimum wage or higher. The Employment Standards Branch has even issued an explicit policy interpretation on internships stating that if the intern undertakes work for an employer then they are considered an employee for the purposes of the ESA.

An example of an illegal situation would be a recent graduate working as an unpaid intern for a public relations firm writing press releases, answering phone calls and responding to emails. Another example of a prohibited situation would be a student working as an unpaid intern over the summer break for a non-profit organization writing grant applications, developing a donor database and soliciting donations from local businesses. In both examples the intern is actually an employee and entitled to the minimum wage.

Conversely, students completing practicums as part of a formal course of study leading to a certificate, diploma or degree are not considered employees and excluded from the ESA. In these situations students need to be supervised and engaged in “hands-on” training, and the practicum needs to be related to the student’s course of study. An example of this situation would be a student-teacher enrolled in a bachelor of education degree and undertaking a classroom placement as part of their training.

It should be noted that interns and students are also protected under other workplace law such as the Workers Compensation Act, the Human Rights Code and the Occupational Health and Safety Regulation. These are critical protections as young workers often face unsafe situations or are subjected to workplace harassment (particularly sexual harassment).

Remember: you have the right to be paid minimum wage and to work free of discrimination in a safe environment. If you find yourself in a legally questionable internship, here are some tips: keep hard copies of all information, emails, documents, initial job application and any feedback you receive; keep a daily log of your duties, start/end times and breaks; ask that any remuneration occur via cheque or direct deposit; and keep copies of a final work product and drafts. Here are some contacts: Employment Standards Branch (1-800-663-3316); B.C. Human Rights Tribunal (1-888-440-8844); and, WorkSafeBC (1-888-621-7233).

Note: this article originally appeared in the Ubyssey and appears here with some minor modifications. In the near future I will be following up on this piece with a comprehensive review of the law in British Columbia.

Youth and Work in the Toronto Star Discussing Unpaid Interns & Precarious Work

2013-03-06T15:03:00.000-05:00

Yesterday I was quoted in an article appearing in the Toronto Star discussing the linkages between unpaid internships and precarious work. From what I've been told the article generated a lot of reader comments and was the top story for most of the day; furthermore, it has generated an interesting Reddit discussion. Two other legal commentators were also featured in the article: Professor David Doorey, a labour law scholar at York University, and Nav Bhandal, a Mississauga employment law lawyer.

For some of my previous analysis on the topic of unpaid internships see: "The Legality of Unpaid Internships in Ontario"; "Australian Government Tackles Unpaid Internships"; "Generation Free: Are universities perpetuating inequality by promoting unpaid, precarious work"; and, "Why can't Bell Canada pay its interns?". Also, take a listen to talk that I gave at Ryerson University back in the fall of 2012, see:

The Devil Pays Nada

2013-03-04T03:32:00.000-05:00

There's a youth exploitation industry in Toronto and I want to introduce everyone to its newest entrant: Springtern. I recently stumbled upon this company, founded by Ben Wise and Ronald Lam, and was floored by the unabashed exploitation that it's perpetrating against young workers. Springtern's business model is simple: it advertises jobs directed at students and young workers for companies. There's just one hitch: few, if any, of the jobs advertised on Springtern are paid positions.

The law in Ontario (and the rest of Canada) is quite clear. If a person is performing work for a for-profit (or non-profit in most jurisdictions) enterprise then they must be compensated for their labour at the rate of the minimum wage or higher. Simply put, an employer cannot contract out of employment standards legislation via an agreement with an employee. At the core of Springtern's business model sits the illegal practice of contracting out of the social minima contained in employment standards statutes.

Springtern attempts to subvert the "problem" of employment standards by attempting to frame the advertised jobs as "volunteer" positions and by using an "Intern Waiver of Liability Form" that states the interns will be paid only in the "experience and training gained by working". The foregoing is a mildly creative attempt at contracting out of employment standards, but still incredibly at odds with core principles of Canadian employment law and the current case law on unpaid labour. The companies using Springtern's services are setting themselves up for litigation given the rather blatant flouting of the prevailing employment standards law.

Now what kind of companies would enter into such an arrangement? Take a look at the listings on Springtern's website. The companies listing "jobs" on Springtern seem to be a smattering of small fly-by-night Internet marketing and social media outfits. While some of the jobs are relatively small, others require 500+ hours to complete (check out the particularly egregious ones from RaeAllan aka Bobby Umar). All of the jobs posted are unpaid and call for duties that employees are typically paid to complete. None of these practices are normal, rather what's being framed as opportunities for youths is really nothing more than gussied up slave labour.

In closing, drop Springtern an email and tell them what you think about their business model. Finally, take a peek at some of my recent musings on the deployment of unpaid labour in Canada's labour markets: here, here, here, and here.

A Modest Proposal

2013-02-21T15:15:00.000-05:00

Since the elevation of Kathleen Wynne to the position of Premier there appears to be a glimmer of hope that problems related to the youth labour market will be addressed in some fashion given the frequent references to youth unemployment in her news conferences and in the recent Throne Speech.

With this new spirit of optimism in mind I've assembled an approach that centres around ideas that could be utilized to build a stronger youth labour market, spur job creation for Ontario's youth, and enable economic growth. Adhering to this approach would symbolize a demonstrable commitment to Ontario's youth and recognition of the difficult socio-economic undercurrents they are facing. What this approach represents is a sensible investment in ensuring sustainable social and economic outcomes for Ontario's next generation of citizens.

Below I've laid out a high-level framework with some key elements that would be useful in addressing the current problems in the youth labour market and avoiding future problems as the labour supply begins to shrink due to demographic pressures.

1. Youth Labour Market Strategy

There is a need to develop and implement a series of youth labour market strategies. It's clear that four separate, yet interwoven strategies are needed and which would focus on: rural environs; urban centres; Aboriginal youth; and, Northern Ontario. Within each strategy there would have to be tailoring to focus on the needs of each separate region as the labour market need differ greatly across Ontario. It's difficult to list what would be contained in the individual strategies, but at a minimum a good start would be a series of consultations with stakeholder groups starting not later than the summer of 2013.

2. Labour Market Information System

Neither the Province of Ontario, nor its citizens benefit from any comprehensive labour market information system. The information currently on offer from the Provincial and Federal governments isn't exactly comprehensive (see: here, here, or here) and arguably sub-par. There's as need to understand what's occurring in the youth labour market to a much higher degree. There are two main goals behind this element: to track the various types of employment that youths engage in and to track individual outcomes throughout the school-to-labour market transition. That being said, there are a number of benefits: youths would have access to better information to base career and educational decisions on, workers would face reduced information asymmetries, and we would be able to negotiate immigration policy with the Federal government on firmer footing.

3. Youth Labour Market Secretariat

Currently there is no body within the Ontario government dedicated to analyzing and advising on issues pertaining to youth labour market issues, rather there are a series of silos that lack the necessary holistic focus needed to tackle thorny issues around policy setting. To overcome this tunnelvision it's necessary to create a dedicated Youth Labour Market Secretariat resourced with staff that can coordinate efforts across government pertaining to youth labour market issues. The staff of this Secretariat should be drawn from: the Ministry of Training, Colleges, and Universities; the Ministry of Labour; the Ministry of Education; and, the Ministry of Economic Development, Trade, and Employment. Simply put, there needs to be one body that can coordinate efforts to reduce the economic scarring that the current generation is experiencing.

4. Proactive Enforcement

There is a dire need for the Ministry of Labour to develop a proactive enforcement strategy centred around employment standards; specifically, this strategy would need to focus on illegal unpaid labour and wage theft targeting youths. At a minimum this strategy would need to have three components: an ongoing proactive inspection blitz schedule targeting high-risk industries known to violate the rights of young workers (such as: law, media, fashion); a design that would respond and adapt enforcement techniques to the digital age; and, development of educational and information sharing networks with stakeholders to identify emerging regulatory challenges, questionable employment practices, and targets for proactive enforcement efforts. It should be noted that other governments, such as Australia, are already rolling out proactive enforcement strategies.

5. Rationalization of Post-Secondary Enrolment

An open secret within post-secondary education sector is that many university graduates currently have very poor labour market outcomes. In key professions there is a very apparent over-supply problem, simply look at law, teaching, medicine, registered dietician, or journalism programs. Students are being haphazardly funnelled into programs without nary a thought to where they might end up. This needs to change as students should be made aware of programs that have poor labour market outcomes. With this problem in mind generally there needs to be greater oversight of the activities of both the Ministry of Training, Colleges, and Universities and the post-secondary education sector as a whole. Specifically, there needs to be rationalization of enrolment numbers and elimination of programs that are no longer serving there original purpose.

Further Reading

There has been quite a bit of research that should be considered in the development of any policy designed to stem youth unemployment. I've culled some of it below and I encourage policy makers to review it. My recommendations are: the Metclaf Foundation's Working Better report; Rick Miner's Jobs Without People, People Without Jobs report; the CGA's Youth Unemployment in Canada report; Richard Marquardt's book Enter At Your Own Risk; Guy Standing's book The Precariat; the Law Commission of Ontario's interim report on vulnerable workers; and the Australia's Fair Work Ombudsman's report on unpaid internships. Finally, check out this video:

Australian Government Tackles Unpaid Internships

2013-02-11T01:08:00.000-05:00

"...the available evidence...indicates that unpaid work exists on a scale substantial enough to warrant attention as a serious legal, practical and policy challenge in Australia." - page xi

The Australian government is taking a huge step forward in addressing in the growth of unpaid labour, particularly unpaid internships, in the youth labour market. Last week Australia's Fair Work Ombudsman ("FWO"), a Federal agency dedicated to ensuring compliance with workplace laws, released a landmark report (it clocks in at 382 pages) entitled "Experience or Exploitation? The Nature, Prevalence and Regulation of Unpaid Work Experience, Internships and Trial Periods in Australia". To the best of my knowledge this is the first comprehensive examination of the growth of unpaid labour by any Western government.

This post is going to provide an overview to the research, cover off what's actually in the report, point out the key recommendations arising from it, and comment on the references in the report to Canada's approaches to unpaid labour.

Who Wrote the Report and What Research Methodologies Were Used?

The report was authored by Rosemary Owens and Andrew Stewart. Both of whom are law professors at Adelaide Law School and internationally recognized experts in the field of workplace law. The report represents a progression in the efforts of the FWO to grapple with the issue of unpaid labour. In 2011 the FWO released a comprehensive fact sheet on unpaid internships and decided that a comprehensive report was necessary to scope the full dimensions of the problems associated with unpaid labour in the youth labour market.

The authors deployed a number of approaches in conducting the research and preparing the report. First, they engaged in an analysis of the relevant laws in Australia governing unpaid labour, international standards arising from the International Labour Organization ("ILO"), and the approaches to unpaid labour in Canada, the United States, New Zealand, and the United Kingdom. Second, a comprehensive review of policy materials and literature surrounding the school-to-labour market transition was conducted. Third, the authors conducted a series of interviews with key stakeholders in from post-secondary institutions, government, industry, organized labour, and young people themselves. Fourth, a number of surveys were distributed in different geographical areas to gauge the deployment of unpaid labour in the youth labour market.

What Ground Does the Report Cover?

The report is comprehensive and I'm not going to attempt to summarize it much beyond giving you a basic sense of what it covers. Chapter 1 covers the origin, focus, preparation, and structure of the report.

Chapter 2 (starts at page 13) of the report starts by locating the discussion of the growing use of unpaid labour in the context of the school-to-labour market transition. This is a key period of transition in the lives of youths where many aspects of their life-course are set. This framework is grounded in recent ILO research on youth employment (see: here and here). This chapter also covers the fall-out from the financial crisis and the impacts arising from globalization.

Chapter 3 (starts at page 28) of the report covers the nature and prevalence of unpaid labour. First off, the report notes that there is a lack of data (official or unofficial) arising from government statistics and that the report had to rely on other methods to chart of the scope of unpaid labour. A number of examples are provided in the chapter to illustrate the concerns relating to unpaid labour. The chapter also contains an excellent discussion of the use of work-integrated learning programs at the secondary and post-secondary level. Finally, this chapter ends with an examination of the prevalence of unpaid internships in the labour market via a discussion about: what are internships; how widespread is the practice; which industries use internships; and, how internships target young migrant students and workers.

Chapter 4 (starts at page 72) and chapter 5 (starts at page 89) charts the legal regulation of unpaid labour under Federal, state, and territorial laws. Chapter 4 starts by reviewing various legal definitions, such as "employee", "employer", and "vocational placement. From there the impact of the Fair Work Act 2009 is reviewed in light of issues such as as minimum wage, enterprise agreements, obligations on the employer, and the consequences arising out of non-compliance. Chapter 5 covers the application and impact of other types of statutes on the legal regulation of unpaid labour, laws reviewed cover the regulation of: industry; education and training; child labour; occupational health and safety; workers' compensation; anti-discrimination; superannuation; and, consumer protection.

Chapter 6 (starts at page 116) covers a topic near and dear to my hear: whether employment contracts exist in the context of unpaid labour. The chapter runs through key aspects involved in the formation of an employment contract, including the intention to create a binding agreement, consideration, mutuality of obligations, and the what employment status exists in the context of unpaid labour.

Chapter 7 (starts at page 155) addresses the oft-ignored area of migration and unpaid labour. The chapter examines how unpaid labour is regulated under Australia's immigration laws. The focus here is on young workers and students coming to live or work in Australia and whether these specific groups face heightened risks for exploitation by unscrupulous employers.

Chapter 8 (starts at page 183) overviews the various approaches to the regulation unpaid labour in the school-to-labour market transition. Four common law jurisdiction are examined, these are: Canada, New Zealand, the United Kingdom, and the United States. Additionally, the use of unpaid internships at international organizations (i.e. the United Nations) is also examined. This chapter makes for some interesting reading if you're interested in comparative labour law.

What Responses Does the Report Recommend?

Chapter 9 (starts at page 245) finishes the report by recommending a multi-pronged response to the growing problem of unpaid labour in the Australian labour market. The recommendations centre around increased education and better compliance efforts. There six distinct areas are: defining unpaid work experience; expanding guidance and education activities; greater education and compliance activities in relation to unpaid labour; commencing test cases; partnering with other government agencies to construct a coordinated response to unpaid labour; and, greater stakeholder engagement.

One of the points that the report raises (on page 245) is that ameliorative action is needed to prevent Australia from going down the route of the United States (and arguably Canada) where young people are forced to engage in long periods of unpaid labour in a wide swath of industries if they are to gain the necessary experience to obtain paid employment. It's important to note that enforcement action can have an impact on the prevalence of unpaid labour in the labour market and taking concrete steps can have an effect.

The FWO outlines their proposed responses to the report's recommendations in this document (see pages 6 to 10). Here are the main regulatory responses: developing a position on what constitutes illegal unpaid labour; develop educational training materials such as online content, industry-specific materials, a handbook/e-book, and e-learning training; a targeted engagement, monitoring, and enforcement strategy which is industry specific; give consideration to developing a litigation strategy; liaise with other government agencies to coordinate strategy on unpaid labour; and, develop a stakeholder engagement strategy focusing on the post-secondary educational institutions and industries where unpaid labour is common.

When it comes to regulation of the labour market, unsurprisingly, I'm a big fan of the hard law approaches, rather than soft law approaches. Overall the FWO's proposed responses are quite sensible, but I have two critiques of the FWO's proposed responses. First, a dedicated litigation strategy is absolutely necessary to show employers that the fist is ready when the velvet glove doesn't persuade compliance. Second, the role of technology needs to be grappled with and new enforcement techniques developed that address employers using the anonymity that the Internet provides to cloak their illegal actions. I won't say much other than to point people to some of my earlier writings on the intersection of technology and employee misclassification or the proposed ban on advertising illegal unpaid internships in the United Kingdom.

What Does the Report Say About Canada's Approach?

The report (see pages 187 to 201) reviews the approaches used by Ontario and British Columbia in regulating unpaid internships. It utilizes some of my early research into the legal regulation of unpaid internships, selected blog posts, and my recent submission to the Law Commission of Ontario on the issue of unpaid internships. The report also references Leah Vosko's excellent book Managing the Margins and the Law Commission of Ontario's research on vulnerable workers and precarious work.

The report Juxtaposes B.C.'s approach to Ontario's one is interesting given that B.C. (at least on paper) officially acknowledges the problems arising from unpaid internships and provides some sensible guidelines. Ontario on the other hand gets criticized in the report (at page 193) for the misleading fact-sheet on unpaid internships that appears on the Ministry of Labour's website which lacks any context or commentary that interns or employers can refer to.

The report covers off the statutory approaches under employment standards legislation in B.C. and Ontario. There's a review of some of the Ontario Labour Relations Board jurisprudence, which is fairly reasonable and straight-forward for the most part. The report also hones in some of the problematic outlier decisions arising from B.C.'s jurisprudence that fail to grasp that interns derive employee status from B.C.'s Employment Standards Act.

Additional Resources

Here is some of the media coverage on the release of the FWO report, see: here, here, here, and here. Check out Nicholas Wilson, Australia's Fair Work Ombudsman, discussing the report and laying out the FWO's response, see:

Is Teachers College Worth It? Nope, Here's the Proof.

2013-01-29T03:04:00.000-05:00

Being a bit of a wonk I've been looking at the data coming out of the Ontario University Application Centre. The 2013 admissions data for Ontario teachers colleges is out and it points to a continuation of a long-term decline in the number of applicants. Some might take this as a bell-weather for future turmoil for other professional training programs.

The 2013 data confirms a long-term trend of less people applying to teachers college in the wake of the financial crisis. This decline isn't terribly shocking in and of itself; however, some of the declines hit specific institutions fairly hard. While most institutions faced double-digit declines in the number of applications in the range of 12% to 18%, a couple institutions posted declines above 20% (Windsor at -25.1% and Lakehead at -22.0%).

When one looks at the specific program data a couple trends appear. French language programs are holding up better than English language programs; however, the French language programs still face declines in the range of -10.0%. The next trend is that programs focused on technological studies face declines of approximately -38.0%; although, this may be linked to the closure of a specific program (I'm unclear on why this decline is so high).

The employment prospects for teachers college graduates continue to be is dire. There's simply a vast over-supply of graduates and arguably there's an extremely troubling insider-outsider dichotomy engaged in relation to the teaching profession in Ontario. The majority of recent graduates are unemployed or underemployed. Graduates that are able to find work often have to move to remote locales in other parts of the country.

There's further room to reduce the number of teachers college students in Ontario. In 2012 there were approximately 6,940 students in Ontario's teachers colleges. There's plenty of room of cut that number by half without much of a real world impact (aside from unemployed professors and administrative staff). Ideally some of the under-performing education faculties could be eliminated entirely via attrition while high-performing ones could be strengthened.

The failure of the Ministry of Training, Colleges, and Universities to address the over-supply of graduates from teachers colleges is a massive oversight failure and the current draw-down of students continues to be a policy blunder. Over a decade ago the MTCU predicted a shortage of teachers and then didn't act once the original forecast was shown to be erroneous. Thousands of students have wasted valuable time and were forced into debt when they had little chance of obtaining a teaching position.

The media haven't latched onto this story yet and it'll be interesting to see how universities attempt to gloss over the collapse of the demand for teachers college in Ontario. Take a look at the following articles for some additional context, see: here, here, here, and here. I've written a number of pieces about the problems facing recent teachers college graduates, see: here, here, here, and here. Take a look at the video below for an overview of the problem, see:

Generation Jobless Airing This Thursday

2013-01-28T16:28:00.000-05:00

Just a quick note today. Later this week CBC's DocZone is airing a documentary called Generation Jobless. The documentary covers a lot of ground in addressing youth un(der)employment, the lack of a national labour market strategy, the failure of post-secondary institutions in preparing students for the labour market, and lack concrete action by government to address the youth employment crisis.

Last year I was interviewed by the producers about my research on unpaid internships in Canada and some the footage appears in the documentary; furthermore, Ross Perlin, a fellow intern rights activist, also gets featured. It's great to see that that more and more attention is being paid to the exploitation of young workers via unpaid labour. It remains a massive issue in Canada's labour markets that policy makers are only beginning to come to grips with.

It's airing on Thursday January 31 at 9:00 pm on the main CBC channel, so set your PVRs to record it and watch me in action. There's also a live-chat happening at the same time featuring TalentEgg's Lauren Friese who will be discussing what techniques youths can use to find jobs. Here's a preview of the documentary:

International Labour Organization's Global Employment Trends 2013

2013-01-25T14:23:00.000-05:00

The International Labour Organization has released in 2013 Global Employment Trends report. The report makes for grim reading as the ILO predicts an uptick in the global unemployment rate in the face of continuing economic uncertainty in Europe. If you're a labour market wonk then I would highly suggest giving the report a scan as the ILO's research is unparalleled and paints a global picture of the challenges that the global economy faces going forward. Below is an short video interview with Moazam Mahmood, Director of the ILO's Economic and Labour Market Analysis Department, covering off key findings from the report.

Failing Law Schools? You be the judge.

2013-01-24T02:12:00.001-05:00

"There is a zealous faith in American culture that higher education always pays for itself, but it's like the subprime mortgage scandal without securitization. When people realize it's a worthless degree, the system is going to collapse." - Paul Campos

The Cato Institute held an event earlier this month entitled "Failing Law Schools". Two of the most prominent critics of the current model of legal education in the U.S. spoke at it. Law professors Brian Tamanaha and Paul Campos have recently written books about the deep structural problems facing law schools. A video of the event has been posted online and I highly recommend watching it. It provides a surprisingly balanced critique (from both a right and left-wing perspective) on fudged employment statistics, extreme levels of tuition, poor job prospects, and the failing law school business model. I'm a fairly detached (and a tad cynical) observer of the evolving crisis, but some of the predatory practices discussed really floored me. I've been writing about these problems in a Canadian context for awhile now, see: here, here, here, and here. From the American perspective, check out these resources: here, here, and here. See the video of the event below:

Are interns, trainees, co-op students, & volunteers covered under human rights laws?

2013-01-23T01:35:00.000-05:00

Interns, trainees, co-op students, and volunteers in unpaid training programs or volunteer relationships without fail are covered by human rights laws in Canada and considered to be employment under human rights laws.

This is a bit of a wonkish post, but it covers off an extremely important topic so it needed to be written. The post covers off a number of issues: what do human rights statutes cover; some of the legal and policy considerations behind the current approach; the present state of the law in Canada; and, where to go for assistance if you feel your human rights have been breached.

Part of difficulty in tracking the legality of unpaid internships and volunteer schemes is that various statutes lay out differing tests to ascertain employee status. Simply put, when you're dealing with precariously employed young workers it isn't sufficient to rely on the tests laid out in workplace law that traditionally have been used to check if some one is an employee, rather one has to engage in a contextual analysis that considers all aspects of the employment relationship, what the statute says, and how the statute is interpreted and applied through the case law. This is due to the fact that statutes have shifting goals and purposes.

As far back as 2011 I've taken the position that emerging forms of precarious employment being deployed in Canada's labour markets are clearly covered by human rights statutes. This protection is critical and arguably just as important than coverage under statutes related to employment standards, workers' compensation, or occupational health or safety.

Before we get into the analysis it should be noted that each province and territory has its own human rights statute. That being said, there isn't much case law on emerging forms of precarious employment and it's very much an evolving area of workplace law. Finally, this isn't an exhaustive summary of the current state of the law, rather it's intended as a succinct overview highlighting an emerging area of workplace law.

What do Human Rights Statutes Cover in Canada?

Human rights statutes are laws aimed at ensuring a minimal level of protection in the area of civil rights. These laws impact on wide range of activities in modern Canadian society such as employment contracts, commercial services, rental of residential properties, and the delivery of services to the general public.

These statutes typically state that people are entitled to equal treatment free from discrimination or harassment on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital, family status, or disability; additionally, it should be noted that some provinces include additional grounds such as political affiliation.

For situations involving unpaid labour key problems that young workers could be facing include sexual harassment, discrimination on the basis of age, asking prohibited questions in interview situations, and general harassment due to the social location of the worker in the workplace.

What are the Legal and Policy Considerations Behind the Canadian Approach?

Before tackling the application of human rights statutes there are a number of key narratives that need to be covered off to address the full scope of coverage in relation to interns, trainees, co-op students, and volunteers.

It's clear that human rights statutes are intended to be broadly applied and that the term "employment" has a far broader meaning in a human rights context than it is normally ascribed under workplace law. These statutes cover the full-spectrum of employment relationships such as short-term contracts, independent contractors, casual employees, sub-contractors, and part-time employment. It's necessary to utilize a purposive and functional analysis in determining whether an employment relationship exists.

For support of this approach in case law take a look at the following cases: Szabo v. Poley, 2007 HRTO 37 (CanLII); Rocha v. Pardons and Waivers of Canada, 2012 HRTO 2234 (CanLII); Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Reid v. Vancouver Police Board, 2005 B.C.C.A. 418; Barrie (City) v. Canadian Union of Public Employees, Local 2380, [1991] O.P.E.D. No. 41 (Ont. P.E. Trib.); Roberts v. Club Expose, (1994) 21 C.H.R.R. D/60 (Ont. Bd. Inq); Ahluwalia v. Metropolitan Toronto (Municipality) Commissioners of Police, (1983) 4 C.H.R.R. D/1757; Payne v. Otsuka Pharmaceuticals Co. Ltd., (2001) 41 C.H.R.R. D/52 (Ont. Bd. Inq.); Canadian Pacific Ltd. v. Canada (Human Rights Commission), [1991] 1 F.C. 571 (C.A.); Pettie v. Canada Safeway Limited and Gavin (No. 2), 2004 BCHRT 440; Middlemiss v. Norske Canada Ltd., 2002 BCHRT 5; and, Pannu, Kang and Gill v. Prestige Cab Ltd., (1986) 73 A.R. 166 (C.A.).

Closely related to the above-noted proposition are a couple of inter-related concepts. The first is that human rights statute and policies arising from them are deserving of broad, policy-based, and liberal interpretations. For case law backing up this concept see: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403; and, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665.

Second, there's the concept that when a legislature intends on limiting the scope of the statute, it will usually do so in a clear and cogent manner; furthermore, it is beyond the power of human rights tribunals to create statutory limitations. For case law in this area take a peek at the following decisions: Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513; Glykis v. Hydro-Quebec, [2004] 3 S.C.R. 285; Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, [2005] 3 S.C.R. 425; Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667; and, University of British Columbia v. Berg, [1993] 2 S.C.R. 353.

Are Interns, Trainees, Co-op Students, & Volunteers Covered Under Human Rights Laws?

In Canada interns, trainees, co-op students, and volunteers enjoy protection under human rights statutes. This is due to the application of concepts examined above and the evolving nature of workplace law in Canada. Over the past twenty-five years there have been any number of decisions that have enshrined protection for wide number of citizens who engage in forms of employment that fall outside traditional forms of employment.

The leading decision on scope of employment related to volunteers in Canada is the Nixon v. Vancouver Rape Relief Society, 2002 BCHRT 1, which held that volunteer relationships can be "employment" for the purposes of human rights statutes and for the obligations arising out of the law. The reasoning of the decision was later confirmed by the British Columbia Court of Appeal in Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601 (also see the Superior Court decision).

In the recently released decision in Rocha v. Pardons and Waivers of Canada, 2012 HRTO 2234 (CanLII), the Human Rights Tribunal of Ontario held that even when a person agrees to work in an unpaid capacity without remuneration for a period of time it does not remove them from the protections guaranteed under the provisions relating to employment under Ontario's Human Rights Code.

For additional human rights case law, see: Brown v. Robinson, (1989) 10 C.H.R.R. D/6286 (B.C.C.H.R.); and, Thambirajah v. Girl Guides of Canada, (1995) 26 C.H.R.R. D/1. Additionally, there is support under Canadian tort law for holding volunteers to be employees in analyzing whether a duty of care existed, see: Huba v. Schulze and Shaw, (1962) 32 D.L.R. (2d) 171 (Man. C.A.); and, Poppe v. Tuttle (c.o.b. 800 Ranch), (1980) 14 C.C.L.T. 115.

What Should I do if my Human Right Have Been Violated?

If you feel you're experiencing a breach of your human rights it is best to contact a lawyer or the human rights agencies in your specific province to get specific advice on how to enforce your rights (feel free to show them this article). Take a look at some of my previous articles on unpaid labour in Canada, see: here, here, here, and here. Take a peek at this great episode of Al Jazeera's The Stream discussing the implications arising from unpaid internships, see:

Are workplace rules around tattoos changing in Canada?

2013-01-15T14:56:00.000-05:00

I'm going to get back into the habit of addressing day-to-day workplace issues that young workers face in the course of their jobs. Today's post is right up that alley as it's all about the permissibility of tattoos and piercings. This is a thorny issue that has been stirring for decades as tattoos are perceived to be "sinful", wrongly of course, by certain quarters of the Canadian population. The perception of people with tattoos is changing as the younger (and more tatted) generation enters the labour market. Mainly the issue centres around inter-generational tensions, stereotypes, and ingrained prejudices.

Recently an arbitrator ruled that an Ontario employer was not allowed to force employees to cover-up large tattoos or remove body piercing. The decision was made in the context of an unionized workplace and relied upon the KVP principles which holds that workplace rules imposed by employers must be "reasonable". I'm not going to delve much into the legal background, but here's the actual decision and Doorey's Workplace Law Blog breaks down the legalities.

In the decision, the arbitrator ruled that the rules governing large tattoos and piercings had no legitimate business reason associated to them and goes on to essentially toss the rule out. It's important to note that the precedent that this decision sets would only apply to unionized employees. Sadly the vast majority of young workers in Canada work in non-unionized workplaces are out of luck when it comes to contesting rules on piercings and tattoos as they have no one advocating on their behalf; however, if it could be proved that the tattoos or piercings relate to an enumerated ground under Ontario's Human Rights Code then a worker might have an opportunity to contest a rule.

If you've have been the target of harassment or discipline at work due to your tattoos let me know via email or leave a comment below. I've culled a few articles on the issue, see: here, here, and here.

The Future is Unwritten: Precarity, Cultural Apartheid, and Unpaid Internships

2013-01-14T18:45:00.000-05:00

Note: Last Friday I was a part of a panel discussing internships at the Canadian University Press's annual conference. The following are my comments and it focuses on the growth of unpaid labour and the emergence of cultural apartheid in key professions in Canada's labour market. I've inserted some hyper-links to key material that I relied upon in crafting my remarks.

First off, thank you to the organizers of NASH for inviting me to speak. It's great to be speaking with all of you this morning and I hope you're all enjoying your trip to the centre of the universe.

The topic today is whether internships are invaluable or exploitative? I come at this issue from a legal perspective as my graduate research has focused on issues relating to the unpaid labour that young workers engage in during the school-to-labour market transition. My comments today are aimed at the deeper cultural, political, and economic implications arising from the rise of unpaid labour in Canada's labour markets.

I'm going to cover three areas. I'll frame the overall issue with a particular focus on some of the underlying inequalities that are implicated. I will argue that internships are a form of cultural apartheid. Finally we'll end by talking about why this issue matters to you as journalists.

Framing the Problem of Unpaid Internships

Let us take a look at the dimensions of this issue.

I want to begin by casting cast internships as an issue that implicates inter-generational equity. This concept relates to how societal resources are distributed over the spectrum of age; the intergenerational differences in access to economic resources and social mobility; and, how any differences are accounted for within law, public policy, and institutional structures.

One of the profound problems with unpaid internships is that this type of employment specifically targets youths. Our parent's generation didn't have to engage in nearly the same level of unpaid labour; it's the new normal after thirty years of successive governments actively ignoring and not responding to the changes within Canada's labour markets.

The growth in unpaid labour is linked to the feminization of Canada's labour markets. This is concept that holds that jobs are increasingly resembling the conditions that women have historically faced in the workplace. This is a process of gendering-down which sees lower wages being paid, few or no benefits, low levels of regulatory protection, and little or no control over the conditions of work. The foregoing being a deviation of the post-war standard employment relationship.

Journalism is an industry that features a growing level of feminization. This is evidenced by: a high-level of labour market insecurity, a reliance on freelance or contract workers, and stagnating wages that often can't adequately sustain the necessities of life.

We all exist in a "gloves-off economy". One that has been buffeted by thirty years of austerity, cuts, structural adjustments, and profound changes. Consider McGuinty's illegal imposition of contracts on teachers or Harper's assault on families and workers by slashing at heart of EI and CPP. Governments are increasingly attacking workplace standards, promoting policies that download risk onto individual employees, and tactics aimed at eroding of the living standards that our parents and grand-parents enjoy.

Young people have been sold a bill of goods, this is a false prospectus of massive proportions. Students have been told by government, their parents, and schools that if they obtain post-secondary educations they'll get a good job and earn more. Currently we have youths beset by the triple whammy of high tuition, un(der)employment, and debt. A shrinking minority are still able to land decent work, but the majority are forced to make due with what Douglas Coupland (originally coined by sociologist Amitai Etzioni) termed a McJob - "a low-pay, low-prestige, low-dignity, low benefit, no-future job in the service sector."

Every year in Canada young workers engage in somewheres between 100,000 to 300,000 illegal, unpaid internships. These positions are used as pools of cheap labour which employers directly benefit from. The growth of unpaid labour in the youth labour market has a destabilizing effect on Canada's labour markets.

Consider the impact: wages are driven down, paid employees are replaced with unpaid ones, youths are forced to incur higher levels of debt, entry level jobs become scarce, underemployment becomes commonplace, and the youth unemployment rate increases. The rise of unpaid internships in Canada corresponds to the growth of precarious work among youths such as temp, unpaid, freelance, contract, and part-time positions which deviates from the post-World War II standard employment relationship characterized by full-time positions, living wages which could support a family, and job-security.

Beyond the labour market impacts there are larger socio-economic trends engaged. Young people today are engaging in post-secondary education in much higher numbers than previous generations. Tuition fees are at high levels with little chance of abating in most provinces. There is a troubling increase in mental health issues amongst youths. More that half of millennials now live with their parents. Relationships, marriages, household formation, and the birth-rate have been declining over the past two decades. Youths also face stagnating wages and difficulty in finding good jobs with benefits.

This all points to the fact that youths are facing declining living standards and deteriorating economic conditions as compared to previous generations.

Is Cultural Apartheid Emerging as an Effect of the Growth of Unpaid Labour?

Journalism has become an "elite pursuit", a "glamour industry" if you will for the privileged elite of the post-industrial age. In the wake of the Internet the industry has been in a permanent state of upheaval and disruption. To enter the field inevitably requires aspiring journalists to engage in unpaid labour, be it at student publications, as part of their degree requirements, or as a precursor to paid employment.

What has occurred is that journalism as a profession has generally been cut-off as a possible career to youths from lower socio-economic classes which also has linkages to social locations such as racialization, immigration status, or disability. To become a journalist now literally requires start-up capital or incurring debt for school, stints doing unpaid work, and to bolster low starting wages. Now, all of this is deeply troubling, so let us explore some of the deeper implications that I see on the rapidly approaching horizon.

Look around this room, consider who is attending this conference. Or look in the conference guide to see who's reflected in the presenters at this conference. I'll let you draw your own conclusions, but I'd suggest what's on display is undeniable privilege. My aim here is not to criticize, but to point out how power structures within our culture are being replicated and sustained.

Over the past eighteen months Canada has seen the emergence of a number of social movements: Occupy, the Maple Spring, and now Idle No More. All of which are contesting the prevailing social and economic conditions in Canada. Like clockwork each of these movements faced sustained vitriolic attacks from the mainstream media. For the most part the demands were marginalized, the leaders mocked, and the underlying grievances and possible remedies largely unexamined. I would suggest that none of the foregoing are particularly positive developments for either the media or our democracy.

Consider the cartoonish capitalist horror-show duo of Lang and O'Leary preaching the gospel of unrelenting greed, Ezra Levant's venomous diatribes against Aboriginals, Muslims, Roma refugees, and the poor; or the idiotic, provincial ramblings of Wente, Blatchford, and Levy aka the Holy Trinity of Hate.

This is what passes as "journalism" these days in Canada, a form of tawdry infotainment devoid of perspective and heavy on mocking anyone not falling outside a narrow, uncritical corporate mould. I could move on to other examples, but I'm certain you get my point that currently there's little evidence that a marketplace of ideas is on offer within the mainstream media in Canada, which are the exact places that many of you, I would imagine, want to end up working.

Underpinning all of this is an unstated subtext at work that demands interns: look like us, talk like us, and be from money. If you look at the national, regional, and local media outlets in Canada our country's diversity isn't well reflected; there's a profound lack of racialized perspectives, little differing socio-economic angles, few viewpoints from Aboriginals peoples, and a deep gendered bias that ignores the insights of women.

Many key media outlets now regularly use unpaid labour as part of their business model, locally organizations like The Walrus, CTV, BlogTO, Rabble.ca, This Magazine, Spacing, and The Grid all use unpaid internships. The growth of unpaid labour contributes to exclusionary conditions where historically marginalized groups are denied the opportunity to fully participate in key institutions in Canadian society and face structural glass ceilings that aren't easily broken. The alienating and socially exclusionary nature of internships can be easily characterized as an emerging form of cultural apartheid that strikes at the heart of democracy, equality, and diversity.

My worry is that one of the long-term implications we're starting to see from the deployment of unpaid labour in Canada's labour markets is the enclosure of certain key professions, be it the law or journalism, via economic and social barriers which will prevent members of historically marginalized groups from obtaining paid employment and establishing themselves in these professions.

So Why Does All of This Matter?

So why should the growth of unpaid labour matter to young journalists? Well, there's the personal angle in the fact that many of you will need to engaged in prolonged periods of unpaid labour to establish yourselves as journalists in Canada's labour markets, but there's a deeper lesson in this issue with troubling dimensions afoot. It's about untold stories, about narratives that are ignored, and the hidden issues that are being faced by growing segments of our society.

We face immense challenges as a country in the decades ahead. Consider that we face a rapidly aging population, crumbling infrastructure, a broken political system, and an economy that will be only growing slowly going forward. Amid this environment many people will be experiencing profound precarity in their lives, insecurity in the labour market, and uncertainty as they navigate new socio-economic realities in Canadian society. As a society we need stories about these sorts of issues told, desperately, as increasingly we're living in country that delineates the haves from the have-nots.

That's where all of you come in. There's a dire need to explain, contextualize, and account for what's occurring in the labour market and wider society. Currently there's a dearth of coverage about what's happening to regular Canadians in their day-to-day working lives. The struggles, the triumphs, and how the daily grind impacts upon our families, the communities we live in, and larger society.

Somewheres along the way we stopped telling stories about labour and work, this needs to change going forward. Hopefully some of you will begin to tell our stories about the dignity or indignities that jobs bring. As Joe Strummer, the lead singer of the Clash, once remarked "the future is unwritten", so go write it.

Thanks, that's all I have for today.

(This blog post is dedicated to the memory of Aaron Swartz. Aaron was an Internet pioneer and information activist who helped create much of the infrastructure that bloggers rely on to disseminate information. He was charged by the U.S. Federal Government over a trivial matter related to his activism and committed suicide last week in the lead-up to his trial where he was facing a possible sentence of forty years in prison.)

The Help

2013-01-03T00:23:00.000-05:00

Baffler magazine once opined that "interns built the pyramids". Perhaps the modern equivalent of the pyramids is the prodigious level of governance emanating from Washington and London, cities that are literally fuelled on the exploitation of (illegal, unpaid) intern power. I've been pinning for an opportunity to address how local politicians abuse the unpaid labour of young workers, but understandably the concerned parties aren't exactly forthcoming with concrete information (unless you're Nick Kouvalis). Recently, I stumbled upon evidence that exposes the practice by senior politicians in Ontario of exploiting unpaid labour.

With almost one in five young workers in Ontario currently unemployed one would think that provincial politicians might be taking the problem seriously. No, in fact some are actually contributing to youth joblessness as evidenced by Liberal MPP Laura Albanese's recent advertisement (see above) on the York University's Career Centre website looking for a Communications/Outreach Assistant.

MPP Laura Albanese

Laura Albanese, who is also the Parliamentary Assistant to the Minister of Labour, is looking for a little (free) help in the areas of "social media, writing of communications pieces, data input, tour logistics, graphic design, media relations, event planning, policy creation, research and other duties". These duties appear to be what workers normally get paid for in Ontario, but strangely this part-time unpaid internship doesn't offer any form of remuneration.

This position is illegal under the Employment Standards Act, 2000 ("the ESA") as it fails to pay the minimum wage of $10.25 per hour and is an attempt to contract out of the minimum standards under the ESA. Simply put, a person cannot "volunteer" their labour to employers where the job duties are similar to those for which workers in Ontario normally receive remuneration. Additionally, this position does not appear to fall into any of the exclusions enumerated under the ESA. It's disgusting that one of the senior leaders at the Ministry of Labour feels free to blatantly violate the social minima designed to stabilize Ontario's labour market.

Given the horrible record of the Liberal Party of Ontario when it comes to youth unemployment this sort of exploitation targeting youths shouldn't come as a surprise. Over Premier Dalton McGuinty's three terms youth unemployment has skyrocketed, funding for programs targeting youths have been slashed, and tens of thousands of young people have lost their jobs. The neglect by the McGuinty government toward youth labour market problems has been profound amid little movement towards actually addressing youth underemployment, an abject lack of a labour market strategy, the rise of unpaid labour, or the growing economic insecurity and precarity that youths face in Ontario society.

Given that Laura Albanese is essentially violating the ESA via the above-noted advertisement I would hope that at a minimum she is removed from her position as Parliamentary Assistant if not asked to resign her seat as a MPP. If you don't like Laura Albanese's hands-on approach to destabilizing Ontario's youth labour market give her a call at 416-212-9790 or drop her an email. For earlier articles about political inaction on youth labour market issues, see: here, here, and here. Finally, take a look at the video below where I discuss the rise of unpaid internships in Ontario.

The Year in Review

2012-12-29T02:41:00.000-05:00

First, an apology as I haven't written much in awhile. This wasn't due to unintentional neglect, rather I had a couple projects that needed to be wrapped up. Both of which took up an inordinate amount of time over the past couple months.

2012 turned out to be a fairly interesting year for writing about domestic youth labour market issues. There was a lot going on in terms of political inaction, adoption of regressive policy, entrenchment of neoliberal modes of thinking, and the strategic abandonment of youths in Canadian society. That being said, there was also a lot of hope on display with the Maple Spring's hugely successful anti-neoliberalism protests, the toppling of Charest's corrupt administration in Québec, and the late entry of the Idle No More Aboriginal rights movement.

The top rated blog posts on Youth and Work from 2012 generally focused on the intersection of unpaid labour, the abuse of institutional power, and the exploitation of young workers. The top five posts (by page views) are overviewed below with some pithy commentary.

Number Five: "Who Let the Dogs Out? A Rebuttal to Bruce Feldthusen". This is the type of post I call "The Emperor's New Clothes". Essentially, a take-down of a powerful figure who is doing something I find distasteful. I have no idea if Dean Feldthusen actually believes the talking points he's spewing, but I'll give him some free advice: no one is buying the party line.

Number Four: "Bridge to Nowhere: Inside the Canadian Law School Scam". This is another Dean Feldthusen themed post from the first half of 2012. I thought it was fairly insightful as it displayed the problems that recent law graduates face in a saturated labour market and the hostile attitude of callous law school administrators.

Number Three: "The London, Ontario riots, stupidity, and social media.". Social media is terribly dangerous in a myriad of ways. This example shows what can happen when you mix too much alcohol, a little gasoline, bored youths, and the most banal city in Ontario.

Number Two: "Why are law firms addicted to unpaid work?". This is my personal favourite in the top five as it exposes the seedy underbelly of the legal profession and the illegal practices that some firms deploy to bolster their bottom lines.

Number One: "Why can't Bell Canada pay its interns?". Bell Canada's Professional Management Program is by far the most egregious example of outright exploitation of young workers by a large Canadian corporation. This is the blog post garnered the most attention by far, clocking in at 10,000 page views and counting.

So that's a wrap on 2012, but what does 2013 hold for the Youth and Work? Well, the blog will be incorporating increased video content with additional interviews with labour market experts, focusing more on the impact of labour market insecurity and precarious work on youths, and using a greater amount of sociological theory (I actually have a degree in sociology) to root observations about the place of youths in Canadian society. You'll want to be reading as the fun is just getting started. Trust me, I'm a lawyer.

Who let the dogs out? A rebuttal to Bruce Feldthusen

2012-12-03T16:18:00.000-05:00

Bruce Feldthusen, the embattled soon to be former Dean of the University of Ottawa's Faculty of Law, wrote a letter to the Canadian Lawyer Magazine attempting to absolve himself of any responsibility in creating the articling crisis. This is yet another attempt at creating a revisionist history devoid of any basis in reality and a troubling sign of how far some legal academics will go in perpetuating the law school scam in Ontario.

Let us recap the evidence. The University of Ottawa's Faculty of Law boosted enrolment by 126% from 1997 to 2011, which translated going from 165 to 376 students, an increase of 221, over a period of fifteen years. In one notable year the University of Ottawa's Faculty of Law boosted enrolment by approximately 50 students due to an administrative error by Bart Cormier, the former Assistant Dean of Academic Affairs and External Relations; furthermore, no steps were taken the following year to correct the error, rather enrolment was boosted by a further 39 students.

Bruce Feldthusen

From 1997 to 2011 there was a system-wide increase of 285 additional law students with the University of Ottawa's Faculty of Law accounting for 78% of the total increase with their 221 more students. These are the facts, based on external data collected Ontario Universities' Application Centre, and while the impact of this increase is up for debate it is ridiculous for Bruce Feldthusen to infer that enrolment at his law school isn't a major contributing factor to the articling crisis (this isn't the first time he has done this either, see: here).

As an aside, Bruce Feldthusen also amazingly invokes the Competition Act as reason why it would be impossible to reduce enrolment. It's a stupid argument to make as competition law and the funding of post-secondary education are two completely separate areas. It's well within the power of the Ministry of Training, Colleges, and University ("MTCU"), the Cabinet, and the legislature to intervene to address enrolment levels in specific academic programs. In fact, a couple years ago Ontario's Teachers Colleges were read the riot act by the MTCU and subsequently reduced enrolment system wide.

Over the same period of time, 1997 to 2011, the University of Windsor's Faculty of Law also saw a 50% increase in the number of students enrolled. Two points should be noted with regard to Windsor's increase: it was mainly due to the dual American/Canadian Juris Doctor option which allows students the ability to practice in the United States; and, the 50% increase reflectes the height of enrolment at 226 which was an increase of 75 students over 1997, while most years the increase was much lower at 30 to 50 additional students. Western also has had increases during the same period, but the class sizes there can vary year to year; however, there is a consistent trend of boosting enrolment by 10% to 12% over 1997 levels, which translates into about 15 additional students per year. The other law schools (Queen's, Osgoode, U of T) have kept enrolment numbers at 1997 levels.

Now, I've never attributed the articling crisis solely to the actions taken at the University of Ottawa, far from it. While the increases at Ontario's law schools, particularly the University of Ottawa, have flooded the labour market with law graduates the story is far deeper. Other contributing factors include: the globalization of legal education which has seen many Ontario students go to the U.K. and Australia to obtain sub-standard legal education at what are essentially diploma mills; the trends of cost-cutting in firms and an increased willingness to outsource intensive legal work to subcontractors in Canada, the U.S., and overseas; and, the decline in the demand for legal services in the wake of the financial crisis.

The fact that law schools produce far too many graduates cannot be ignored anymore. Let us take a look at some trends in the legal services labour market in Ontario. Firms are hiring less students than they have in the past. Tuition levels are excessive and students regularly incur $100,000.00 plus in debt before they've begun to article (if they're lucky). Unpaid articling postions are on the rise and largely remain unacknowledged by law schools or the Law Society of Upper Canada (unpaid labour was also institutionalized last week by LSUC with the addition of the LPP option).

So what's to be done. Well, for starters the law schools at University of Ottawa, the University of Windsor, and Western need to reduce their enrolment back to 1997 levels. I realize that this will mean significant cuts and job losses at the University of Ottawa and the University of Windsor, but it's a necessary first step in achieving some semblance of labour market stability for law graduates. Second, industry groups, such as the CBA, OBA, Advocates Society, need to be vocal that students going to the U.K. and Australia have low chances in succeeding at a legal career given that most firms refuse to interview graduates from those schools. Third, law schools and LSUC would be well advised to tell prospective students that law school is expensive, a long process, and successful completion does not guarantee a job or career.

I've written about the articling crisis extensively, see: here, here, and here. Jordan Furlong posted a great analysis of Feldthusen's comments on Slaw. Finally, Bruce Feldthusen in closing his letter asks that LSUC Treasurer Tom Conway to "please help us call off the dogs". I've never been called a dog before and I'm left pondering what breed I might be: clearly not a Pug, nor a Labradoodle, but perhaps a Staffordshire Bull Terrier. Anyways, here's a video that asks the tough deep questions: