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I have heard it can be illegal to work without pay. Under what circumstances is this true? I could see why it would be illegal for certain things (like a police officer not getting paid), but what about volunteer work that can be done for free (like cleaning up a beach)? This question focuses on Canada.

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A variety of Canadian national laws have established general restrictions that impart largely universal rights upon all "employees", as well as certain duties upon all "employers" with regard to the definition of who qualifies as an employee and who must be paid.

Despite the national framework, the provincial standards construed through case law are largely controlling. Employees in Canada are protected by the employment standards set forth by each province, which then will typically be given precedence over in the national rubric unless the latter gives greater rights to workers.

These provincial laws apply to all “employees” and “employers” within the province unless a clearly defined exemption or restriction in the national framework applies, or unless there is not a provincial framework in place. The provincial, versus the national legislation, makes it necessary to determine whether he or she fits into the definition of an “employee” under either of these legal structures; chances are, if a person is working in any way they are employees who need to be paid.

While the extended definitions vary, a person is an employee in all provinces if they generally appear to be an employee ( they perform the type of work a person would typically be paid for, they are controlled to some extent by the employer, etc.) As defined through these statutes and stare decisis, individuals who fit these definititoins and tests are employees, and hence, are entitled to receive wages. This is almost always true regardless of any signed contracts or verbal agreements suggesting otherwise - agreements of this type are largely unenforceable except in the rarest of circumstances. Thus, unlike the U.S. where an intern can form a contract with the consideration being the value of the educative environs, in Canada, not so. Hence, whether the intern is willing to not be paid, or has signed an agreement acknowledging that he or she would not be paid, if they decide to sue for wages (or even if the employer is audited without the employees input), the existence of a written waiver of pay is not determinative of employers' liability.

Much like the FSLA, these national and provincial employment laws were adopted with the goal of preventing the exploitation and abuse of workers who are in a vulnerable position relative to their employers. The Supreme Court of Canada has held that provincial employment laws should be construed and interpreted in a broad and generous manner because they provide minimum benefits and standards to protect workers as a general class. However, this framework can also backfire and put young Canadian professionals at a disadvantage in this growing global economy. In some circumstances - especially in competitive professional employment markets where experience is an intangibly invaluable asset - and their neighbors to the south (the U.S.) have the benefit of entering into these relationships. In professions such as law, medicine, business, and many others, internships are an invaluable tool and a stepping stone to permanent lucrative employment, that these "protections" may serve to deprive parties the benefit of.

It is nearly always illegal in Canada to allow an individual to work in an internship or volunteer like capacity if they do so unpaid, even in ways that would traditionally be exempt from the FSLA (Fair Labor Standards Act) in the United States. Despite their nearness geographically to the U.S., there are a number of statutory and common laws that differ considerably between the two sovereign nations.

Canadian courts and provincial authorities apply both the provincial and national employment standards and provisions. Together and/or independent of each other, these laws act in such a way that the test for who qualifies as an employee will inevitably end up encompassing nearly everyone working unpaid, except student interns working few hours. If an intern is not specifically exempted, they are entitled to and must be paid at least the National minimum wage (if the provincial wage is higher, it is the applicable minimum).

Interns who do the same work of "employees" or who are subject to any amount of substantial control and direction by their employers, must be paid according to the test that various cases of the Canadian Supreme Court has engrained into Canadian common law. Even in situation where a would-be intern enters into an contractual agreement that he or she will not be paid does not mean that the employer is complying with their provincial employment standards. Any such clause in an oral or written contract is null and void if it contravenes the respective laws,

The following link will bring you to a professional publication that examines the history and reasoning for these divergent provincial statutes, as well as the few existing exceptions, citing the most important relevant cases that have determined these issues nationally:

http://www.gowlings.com/KnowledgeCentre/article.asp?pubID=3190

  • Amazing. Here is a derivative question for you, dear leader. =] – Mowzer Sep 17 '15 at 6:27
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    @mowzee, You're funny! That's an interesting question. I think that the country where they are working would control. My instinct tell me "where" means the broader "where is employer located" and that The fact that the employer allows you to work remotely isn't really relevant to the analysis. I will see if I can find something more definitive other than instinct! – gracey209 Sep 17 '15 at 16:11
  • What is stating that it is understood that volunteers won't get paid and won't sue to get paid e.g. volunteer beach cleanup or any organize through meetup.com meetup.com/GetVolunteering – Jimmy Bauther Sep 23 '15 at 8:23
  • If it were of their own accord, with no employer control, for only as long as they want...someone may organize, but nobody is, per se, in charge and giving orders, My guess is these are also non-profits. If you wanted to dig deeper into the subject, there are of course, like w/ any other statute, exceptions and exemptions. Volunteer work through an organized nonprofit would likely be in one of those exception. What cannot happen without pay is like an internship, where people are doing a job typically compensated and are under employer control. There is a factual analysis and test to see. – gracey209 Sep 23 '15 at 11:51
  • It really is a bizarre statutory framework... Very paternalistic. One need not even sue. If the gov't saw, for example, a big law firm that had all these newbie law grads clerking 40 hrs a week, free, of their own accord and under contract, they could step in and shut it down. So, it's like saying to , Joe public, that you don't know good enough to judge if you're being taken advantage of or not. Failing to recognize high level jobs often require experience. – gracey209 Sep 23 '15 at 11:57

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