Do Employment Laws Apply To Volunteers?
The Ontario Employment Standards Act, 2000, S.O. 2000 c. 41 (the “ESA”) is silent when it comes to volunteers, but the Guide to the ESA clearly states that volunteers are not employees and are therefore not covered by the ESA[1]. In other words, employment laws do not apply to volunteers. However, there are times when it is unclear whether a worker is a volunteer or being labeled as such when they ought to be labeled and treated as an employee. It is important to identify the factors that distinguish the two because there may be instances where an employer misclassifies an employee as a volunteer resulting in those workers being denied wages and benefits to which they are entitled.
What is the difference between an employee and a volunteer?
Whether a worker receives wages is a key distinction between an employee and a volunteer. Although the ESA does not define volunteers, it does define an employee to include a person who performs work for or supplies service to an employer for wages[2].
Notably, included in the definition in the ESA, an employee is someone who receives training from an employer for “a skill that is used by the employer’s employees”. In other words, an employer cannot train people for skills that are used at the workplace and pay only some of them as employees while classifying others as volunteers. This instinctively feels unfair, and the law treats it as such.
We can look to Regulation 385/96 under the Occupational Health and Safety Act, RSO 1990, c.0.1 (the “OHSA”) for a definition of a volunteer. The OHSA defines a “volunteer worker” as “someone who performs work or supplies a service but who receives no monetary compensation for doing so other than an allowance for expenses or an honorarium”[3].
Another significant factor that helps to distinguish between these two groups of workers is to what degree an employer benefits from their services. Is the work that is essential to a business’ operations being done by volunteers? This was one of the factors flagged in Montaque v. Handa Travel Student Trip Ltd. 2020 ONSC 6459 (“Montaque”), the first of its kind, class action case that found that approximately 1,000 employees had been misclassified as volunteers. The employer in Montaque, had volunteers performing tasks that employees typically did, such as assisting with all activities, collecting damage deposits and damage insurance from customers, performing room checks and passenger sign-ins, and completing detailed incident report. The workers went through a rigorous screening and interview process, underwent extensive training, worked long hours and were given a small honorarium which fell far below minimum wage. This case was settled with an agreement to pay out $450,000 to members of the class action and a commitment to properly classify employees moving forward.
The Human Rights Code and volunteers
Despite volunteers not being protected by the ESA, the Human Rights Tribunal of Ontario has repeatedly held that volunteers can be covered by s. 5(1) of the Ontario Human Rights Code, RSO 1990, c H. 19. (the “Code”). This section of the Code prohibits discrimination “with respect to employment”. In Konesavarathan v. Guelph (City), 2023 HRTO 853, the tribunal recognized that a volunteer panel member fell within the scope of employment for the purposes of the Code.
Conclusion
Volunteers do not have access to the same rights and protections as employees and thus, employment laws do not apply to volunteers. But it is not always clear whether a position is truly a volunteer one or whether it is mistakenly or purposefully misclassified. The possibility for exploitation is there and if you think you may have done or are doing work that ought to be paid, an employment lawyer can help clarify your situation and guide you through appropriate next steps. Contact Whitten & Lublin Employment Lawyers online or by phone: (416) 640 2667
Author – Marilou Lopes
[1] “Your Guide to the Employment Standards Act” (21 June 2019), online: Ministry of Labour, Immigration, Training and Skills Development www.ontario.ca.
[2] Employment Standards Act, 2000, S.O. c. 41 s.1(1)(a)-(b).
[3] O Reg 385/96, s 1.