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THE QUESTION

I have been tasked by my supervisor to find volunteers for three-hour shifts greeting guests at a regular monthly event that my company will host. Greeting will only be done by volunteers. While a portion of proceeds from the event will go to charity, our company is not a non-profit organization. I believe we should be paying greeters, but my supervisor says we don’t have the budget. Is it legal for us to use volunteers for this type of work?

THE FIRST ANSWER

Cynthia Lazar, lawyer and workplace investigator, Taylor McCaffrey LLP, Winnipeg

Generally speaking, employment standards legislation does not apply to volunteers. This means that minimum standards relating to things such as wages and hours of work do not apply. Unfortunately, there is little clear guidance as to who is or is not a volunteer.

In Manitoba, the Employment Standards Regulation provides that the Employment Standards Code does not apply to an employee who works as a volunteer for “a charitable or political organization.” In your example, it is somewhat unclear as to whether the volunteer is working for your company or for the charity being supported.

The Ontario government’s guidance states “the main factors that determine whether someone is a volunteer or an employee are (a) how much the business or person benefits from the individual’s services; and (b) how much the individual views the arrangement as being in pursuit of a living.” In your example, the benefit to your company is unclear, but hopefully, the volunteers are aware they will not be paid.

Other provinces have similar legislation and/or guidance.

To avoid the risk of getting this wrong, while still achieving the aims of the program, the safest plan is to have the beneficiary charity provide the volunteers for the program. Your company’s employees may volunteer, but it would be through the charity. Employees should know this is voluntary and not a work requirement. People should volunteer, not be volun-told.

If there is a union at your workplace, other rules may apply, and you should consult with your union representative.

THE SECOND ANSWER

Laura Williams, founder and managing partner of Williams HR Law LLP, Markham, Ont.

The legality of putting these “volunteers” to work without pay hinges on whether they are true volunteers or wrongfully unpaid employees. The misclassification of workers occurs far more often than many people think and can result in potentially costly consequences for organizations.

The employment standards legislation in each province sets out the minimum standards for conditions of employment, including with respect to wages. Employers must pay all “employees” – as defined by the legislation – at least the applicable minimum wage. In Ontario, volunteers are not considered to be employees under the Employment Standards Act, 2000. However, simply calling someone a volunteer or not paying them wages is not determinative of employee or true volunteer status.

Instead, legal decision makers in Ontario have relied on a number of key factors in determining a worker’s classification – namely, the extent to which the engaging organization benefits from the worker’s services, the extent to which the worker views the work arrangement as being in pursuit of a living and the circumstances of how the arrangement was initiated. Some questions that flow from these overarching considerations include:

  • How essential are the worker’s services to the organization’s operations?
  • How similar are the services to work performed by the organization’s paid employees?
  • To what degree does the organization direct the individual’s conditions of work, including the type of work performed and hours of work?
  • Was there an expectation of payment at the time the worker was engaged?

On its face, greeting guests in three-hour shifts for a specific, charity-related event strikes us as work that is done on a casual basis, in furtherance of a cause that is at least in part altruistic – in other words, work that is truly volunteer work, performed by true volunteers who are not entitled to wages under employment standards legislation. However, given that this assessment is very fact-specific, the best way to be sure – and to mitigate the serious risks of worker misclassification – is to consult a lawyer.

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