October 8, 2015
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Nelligan O'Brien Payne gratefully acknowledges the contribution of Jill Lewis, Student-at-Law in writing this blog post.

As we get closer to the 2015 Federal Election, campaign staffers will surely be putting in extra-long hours. Some of the busiest “staffers” will likely be the unpaid interns and volunteers. Due to the unprecedented length of this campaign, political parties will be stretching their budgets and looking to save money. Here lies the potential problem: as students and young professionals step up to gain experience and connections with like-minded people by joining a political campaign, there may be a temptation to overuse their free hard work.

For this reason, we have decided to take the opportunity to discuss the current status in Ontario regarding unpaid interns and volunteers.

I have been hired as an intern: am I protected under the Employment Standards Act (ESA)?

This is a tricky question that depends on how your job duties are characterized. The ESA defines an “employee” as:

(a) a person, including an officer of a corporation, who performs work for an employer for wages,

(b) a person who supplies services to an employer for wages,

(c) a person who receives training from a person who is an employer, or

(d) a person who is a homeworker.

If an individual falls within this definition, then an employer owes them the minimum requirements under the ESA, including minimum wage (which in Ontario was recently increased as of October 1, 2015).

However, there are always exceptions. The ESA, and all of its protections and minimum requirements, do not apply to an intern receiving school credit, such as:

  1. A secondary school student who performs work under a work experience program authorized by the school board that operates the school in which the student is enrolled
  2. An individual who performs work under a program approved by a college of applied arts and technology or a university.

Another exception lies in the definition section of the ESA, which gives guidance for interns who are not receiving school credit. As per s. 1(1) of the ESA, a person receiving training from an employer is considered an employee unless all of the following six conditions are met:

  1. The training is similar to that which is given in a vocational school.
  2. The training is for the benefit of the individual receiving it.
  3. The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.
  4. The individual does not displace employees of the person providing the training.
  5. The individual is not accorded a right to become an employee of the person providing the training.
  6. The individual is advised that he or she will receive no remuneration for the time that he or she spends in training.

Employers may classify an unpaid intern as a trainee in order to avoid their responsibilities under the ESA. However, the third condition is likely not met in a campaign context if the employer is deriving benefit from your work. If your employer is asking you to perform duties that resemble work of an employee, such as administrative tasks or policy research, then they may be stretching past these conditions. In this situation, you may no longer be considered a “trainee” at law, but an employee who is entitled to receive your minimum rights under the ESA, including minimum wage.

I have been hired as a volunteer: what are my rights?

The Ministry of Labour website states that volunteers are not covered by the ESA. However, case law suggests the following factors are of importance when determining if someone is a volunteer:

  1. The extent to which the person performing the services views the arrangement as being pursuant to his or her livelihood, and the extent to which the person receiving the services is conferred a benefit;
  2. The circumstances of how the arrangement was initiated; and
  3. Whether an economic imbalance between the parties was a factor in structuring the arrangement.

If you have responded to a candidate’s ad that states they are in need of volunteers to knock on doors and make phone calls, and that is in fact what you are required to do, then you will likely be a volunteer. However, if your duties and time commitments start to sway from that original description, then things may change.

Regardless of what your position is called, you have to look at the duties performed, and time spent on the job. There is nothing wrong with attending meetings, campaign offices, or filling envelopes on your own time. However, the lines get fuzzy when your flexible hours are replaced by expectations to be somewhere at a certain time. As soon as you lose that choice, you may be moving over to the employee side of the table.

If you are worried about the role you are playing, go speak with an employment lawyer.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law