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Talent It’s illegal, but many restaurants still ask job seekers to work unpaid trial shifts

In interviews, numerous cooks around the country said they’ve always, or almost always, worked at least a couple hours free when looking for new jobs.

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At a recent job interview for a Toronto kitchen manager position, the chef interviewing James Suttar asked if he would work a four-hour unpaid trial shift. He refused.

Mr. Suttar, who has been working in kitchens for 11 years, is well aware that it’s long been tradition for prospective restaurant staff to work unpaid trial shifts before getting job offers. However, he not only feels it’s just not right to ask prospective employees to work for free, he also knows it’s illegal.

Mr. Suttar’s experience is not an exception. In interviews, numerous cooks around the country said they’ve always, or almost always, worked at least a couple hours free when looking for new jobs. Some reluctantly accept it, some actually embrace it as an opportunity to determine if the restaurant would be a good fit for them; others outright disdain it and believe it’s abused as a way for restaurants to garner free prep work.

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But no matter how these would-be employees feel, Mr. Suttar’s understanding of the law is correct: Unpaid trial shifts are illegal. And some lawyers worry that the problem is only going to increase in the wake of recent changes in Ontario labour law.

During Mr. Suttar’s job interview, the hiring chef said he would not be considered for the job without working the unpaid shift. After, Mr. Suttar contacted the company, Feast – a provider of grab-and-go meals at its own 24-hour kiosk in Toronto’s downtown core as well as through a number of local cafés – on Facebook Messenger. He asked to speak with a senior manager so he could air his concerns directly.

According to screen shots provided by Mr. Suttar, the company representative who responded supported the chef’s actions, questioned Mr. Suttar’s claims that the practice is barred under Ontario’s Employment Standards Act and eventually stopped replying entirely. Mr. Suttar subsequently filed a complaint with the Ministry of Labour. Feast did not respond to requests for comment from The Globe and Mail.

People in the restaurant industry often refer to these unpaid trial shifts as “stages,” borrowing the term long used to describe volunteers who often work free at top restaurants to gain experience. However, many in the industry feel the practice of using unpaid labour can be abused.

“When I was younger and I didn’t know better, I did a 12-hour stage and I never heard back from them at all," Mr. Suttar says. "That was 12 hours of labour that restaurant got.”

Richard Johnson, a partner at Kent Employment Law in Vancouver, says laws across the country clearly prohibit unpaid trial shifts.

“The default position across the country is you’re not allowed to have people working for free,” Mr. Johnson says. “Most provinces or territories will have either an act or a code that sets out minimal protections – and unless you’ve got a very specific situation like a strictly volunteer program, people cannot be forced to work for free.”

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The law is usually only enforced if a prospective employee complains – and even those who know their rights rarely complain about a short trial shift – so the practice remains commonplace.

Even Mr. Suttar admits that a brief trial shift can have mutual benefits. “It’s an opportunity for me to scope out the place and determine if that’s somewhere I want to invest my time,” he says. “But when you’re asking for four hours, you’re either trying to get free labour out of me or there’s something else going on.”

And even if the cook agrees in advance, unpaid trial shifts remain illegal. “It’s to avoid abuses because you can see that vulnerable people or people with less bargaining power end up in a situation where they’re working for free and that’s just not fair,” Mr. Johnson says.

John No, a staff lawyer in the Workers' Rights Division at Parkdale Community Legal Services, says that the issue of unpaid shifts is likely to get worse in Ontario as a result of the Ford government’s Bill 47, which has reduced penalties for employment standards conventions. He’s also concerned that the Ministry of Labour ordered its officers to stop conducting pro-active investigations for non-safety related workplace violations last summer.

“I expect more illegal behaviours from employers in the near future, not less, unless the government reverses its irresponsible decisions soon,” Mr. No says.

Janet Deline, media spokesperson for the Ontario Ministry of Labour, says that changes to pro-active investigations “are temporary and will be re-evaluated as wait times decrease.” However, today most complaints still must be filed by employees to gain the attention of inspectors. Mr. Suttar’s claim, filed through the ministry’s website on Dec. 4 of last year, has yet to receive any response.

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Jen Agg in her Toronto restaurant Grey Gardens on April 26, 2017.

JENNIFER ROBERTS

Jen Agg, an ardent advocate for improving working conditions in the restaurant industry, is one of few restaurant owners willing to talk openly on the subject of trial shifts. In the early days of her Toronto restaurant, The Black Hoof, which closed last year after 10 years in operation, Ms. Agg admits that she had job applicants work unpaid shifts. “It was industry standard,” she says. “But eventually I made company-wide adjustments.”

Now, she instead asks potential cooks to come observe without working to see if it’s a good fit, followed by a meal to allow them to properly experience the restaurant. “It’s important to clearly define a brief observational shift, versus an actual trial or training shift,” Ms. Agg adds. “We pay for training, which people seem very surprised by.”

An unpaid observational shift, if truly voluntary, passes muster under employment law but even that practice begins to get murky if it’s a requirement. “There are a million shades of grey,” says Kevin Love, a lawyer at Vancouver’s Community Legal Assistance Society. “But the general rule is that if the employer requires you to attend work, you’re to be paid for it.”

Taylor Seymour, the general manager of Toronto’s Burdock Brewery, pays job applicants for trial shifts. He says that over the years, he’s heard about restaurant owners taking advantage of unpaid trials. For example, “setting up a line of stages when you know one of your line cooks is away for the week, and you have a bunch of kids come in and do prep work for free and none of them get hired. I’ve definitely heard offhand comments where chefs say, ‘I don’t know if they’ll be good but at least we’ll get prep done today.’ ”

Mr. Suttar says this sort of mistreatment has pushed many people out of the food sector and is contributing to the difficulty many restaurants are having in finding good employees.

“It’s an industry where there are a lot more jobs than employees now because employees have been treated so poorly,” he says.

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