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The Question

I’ve been applying for serving jobs at restaurants and a few places have asked me to come in for a three-hour trial shift. They say it’s part of the interview process to see if I’m a good fit, so the trial shift is unpaid. I’ve asked a few friends in the industry and they say it’s a pretty common request. Is this legal? If not, how can I file a complaint about the business?

The First Answer

Nadia Halum Arauz, associate, Whitten & Lublin Employment Lawyers, Toronto

Having worked in the restaurant industry myself, I agree with your friends that it is a common request. But common and legal is not the same thing. There is no such thing as a “trial shift.” According to the Ontario Employment Standards Act, work is deemed to be performed when it is “permitted or suffered to be done by the employer.” If they permit work to be done, the work must be paid. Similarly, time spent in training that is required by the employer as a condition of employment will be considered working time.

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In Ontario, you may file a claim with the Ministry of Labour if you believe a company has violated the Employment Standards Act. There are many ways you can file a claim, including using an online form. Please note that the decision to file a claim could lead to retaliation from the company. For example, if you got the job following the “trial shift,” the company may retaliate by reducing or even ending your shifts. The Employment Standards Act prohibits companies from engaging in such retaliation, so if this happens to you, I recommend seeking legal advice to learn more about your rights.

The Second Answer

George Huang, lawyer, Guardian Law Group LLP, Calgary

Generally, working interviews are acceptable if there are justifiable reasons for it. However, the interviewee will be deemed to be providing a service to the employer.

In case law, there was an incident where a person assisted a farmer on the land and during the course of the farming activities, the person was injured. Despite working for free, the farmer had some elements of control over the free labourer, so the courts decided there was a servant and master relationship. This servant and master relationship can be argued to today’s employee and employer relationship.

Given that you would be working for your potential employer at the restaurant, it would follow your employer will have an element of control over you when you are working your trial shift, which provides evidence of an employee and employer relationship. In Alberta, the Employment Standards Code (the “Code”) apply to all employee and employer relationships. The Code defines “work” to include providing a service.

Despite the work audition, you are providing a service to your employer that would normally be paid. The Code applies to all employers and employees and any agreements that are contrary to the Code will be null and void. Thus, there is a strong argument that it is illegal if the employer does not pay you.

You can apply to the Employment Standards Office in your province if you wish to complain about the business. You can apply even if you do not have a record of employment due to the interview nature.

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Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com

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