'Where work is permitted to be done by the employer, that is considered work'
“Even if an employee says that they're willing to volunteer, don't just assume that labelling something as ‘volunteer’ means that you don't have to pay what is essentially somebody who's a true employee who should be protected under the Employment Standards Act.”
So says Nhi Huynh, an employment, labour, and human rights lawyer with Toronto-area law firm Williams HR Law, in reference to a recent decision from the Ontario Labour Relations Board.
A small Ontario law office has been ordered to pay a worker for multiple months of work after a dispute over whether the worker was volunteering her services.
It’s a reminder for employers that employees who perform work are likely entitled to be paid regardless of any informal arrangements in place, says Huynh.
“Especially in this case, the employee was still doing some of the work that she was doing before,” she says.
“Whether you call somebody a volunteer, that's not determinative – where work is permitted to be done by the employer, that is considered work.”
The worker was a clerical assistant at a small law office in Penetanguishene, Ont. The office was attached to the lawyer’s home and the worker was the only employee, working an irregular schedule for minimum wage.
When the COVID-19 pandemic hit Ontario in March 2020, the lawyer decided to wind down her practice and retire. She temporarily closed the office while she worked part-time in her home. The lawyer laid off the worker on April 10, telling her that she would earn more from the federal government’s Canada Emergency Response Program (CERB) than she would working part-time for the law office.
Soon after the lawyer closed the office, the worker called and said she was lonely, as she lived alone. The worker asked if she could come back and help out, as both the lawyer and her husband were disabled and needed help with daily activities. The lawyer agreed.
According to the lawyer, the worker said that she was volunteering to help in their home, noting that Prime Minister Justin Trudeau had said that people collecting CERB should volunteer to help the disabled and the elderly. As a result, she didn’t keep track of the hours that the worker spent at her home and office. According to the worker, she never agreed to work for free and she was told to keep track of her hours so she could be paid after the office reopened.
Over the next two months, the worker performed tasks such as typing letters, preparing cheques, providing clerical assistance on the lawyer’s tax returns, helping with housework, assisting the lawyer in getting dressed, assisting the lawyer’s husband with daily activities, and getting the lawyer’s second house that she was selling ready for showing.
The lawyer reopened the law office on July 2 and the worker resumed working in the law office until she quit on Aug. 3. The lawyer issued the worker a cheque for $900 in August, based on an estimate of the work performed by the worker in the office in July.
Worker tracked hours
The worker, who had recorded her hours in an office workbook as normal during the entire time she had been helping out, filed a claim with the Ontario Ministry of Labour for 170.75 hours of work over 35 days during the period that the law office was closed, plus statutory holiday pay for Canada Day. The worker argued that she was entitled to more than $3,200 in total wages.
In February 2021, shortly after the worker filed her claim, the lawyer issued another cheque for $84.74, followed by one for $1,297.10 in March.
While issuing the cheques was an acknowledgment that the worker had performed work, taking so long to pay the worker was still contrary to employment standards, says Huynh.
“I've seen this on plaintiff side where the employee has worked and was promised pay several months after, but I've seen up to two years that they were not paid with the promise of being paid, and that's just not feasible for somebody to be living like that,” she says.
“The Employment Standards Act has the regular pay period and the regular pay day to avoid situations like that.”
Read more: The Quebec Human Rights Tribunal awarded a live-in caregiver more than $40,000 in unpaid wages and damages.
An employment standards officer found that the worker was entitled to wages for the work she had done during the office closure and issued an order to pay on July 21, 2021. The lawyer appealed the order to the Ontario Labour Relations Board, arguing the worker had volunteered and contending that the worker only attended at her home on 21 occasions during the office closure.
The board noted that the Ontario Employment Standards Act, 2000 (ESA) requires employers to give employees a written statement with each pay setting out how the pay was calculated. However, the lawyer simply issued cheques based on estimates and didn’t track the worker’s hours after the office closed initially.
When it comes to determining what is volunteer work, an employer needs to consider who is really benefitting from the services being performed and carefully document the arrangement and hours worked, says Huynh.
“If the employer really wanted to show that it was not the business that was benefitting from the worker’s services, or the individual would not be perceiving this arrangement as pursuit of a living, it would have been better if the employer had proper documentation to show that.”
Read more: Unpaid overtime, vacation, and unauthorized deductions are the most common employment standards mistakes made by employers.
The board disagreed with the lawyer’s argument that the worker had volunteered to provide her services for free. While the lawyer seemed to think that since the worker could collect CERB, she should work for free, the board called it “wishful thinking.” The board found the worker’s version of the agreement more credible, particularly since the worker kept records of hours worked and tasks performed, while the employer did not.
The board also noted that the ESA was clear that employees cannot be expected or allowed to volunteer their hours for free, and previous jurisprudence upheld this doctrine. As a result, the worker was entitled to pay for the work she performed during the office closure, said the board.
The board determined that the worker was entitled to $3,280.92 in wages, holiday pay, and vacation pay. After the amounts already paid were deducted, the lawyer was ordered to pay the worker $999.08 plus a 10-per-cent administrative fee.
Takeaways for HR
The case demonstrates that employers need to be cautious in circumstances where a worker is offering or being asked to volunteer services that may benefit the employer, says Huynh.
“Really err on the side of caution when you're even considering using anybody for unpaid labour – we've had situations where employers thought it was OK, for example, to not pay for overtime work, to have volunteer agreements for a year, things like that,” she says.
“You really want to have somebody who knows what factors to look at to really assess the situation and see whether it's a person who's doing work, for all intents and purposes.
“If it looks like an employee, acts like an employee, and works like an employee, just be careful about not accepting unpaid labour.”
See Warren v. Cook (Mar. 31, 2022), Case No. 0997-21-ES, B. Smeenk – vice-chair.