Written by Alison Braley-Rattai, Brock University
The WE controversy has embroiled Prime Minister Trudeau and Finance Minister Morneau in a scandal that has attracted national attention, and raised questions about their conduct in relation to a federal student grant program that was to bestow over 900 million dollars upon WE Charity to administer. The aspect that has assumed centre-stage in this controversy concerns whether Trudeau and Morneau were in a conflict of interest when deciding to allocate the administration of this program to WE, given their previous ties to the charity. The design of the (now scrapped) program, which anticipated recruiting student ‘volunteers’ to be paid less than minimum wage, also raises questions about program participants’ status as ‘volunteers.’ Whatever the particularities of the program, or how the scandal is eventually resolved, the difficulty of identifying the ‘true volunteer’ quietly bubbles underneath it all.
Misclassification and the Common Law
Misclassification of workers into categories that will not attract generally applicable employment protection, is serious business. Access to such things as guaranteed minimum wages or paid vacation – and the corresponding duties of employers to provide these — is normally available only to those workers deemed to be in an employment relationship. Therefore, it matters whether one is or is not deemed to be an employee as a legal fact. It is for this reason that the questionable classification of workers as independent contractors by app-based companies like Uber and Foodora is everywhere being challenged.
The common law has developed robust jurisprudence pertaining to the distinction between the employee and the contractor. While the dominant legal test may be expressed in various ways, its aim is to answer the underlying question: whose business is it? However, as the ‘true volunteer’ is conceptually distinct from either the employee or the contractor, the dominant legal test aimed at teasing-out who ‘owns’ the business, with reference to such things as the worker’s opportunity for profit or loss, or the amount of control the worker has over the organization of their work, or whether they are free to hire their own assistants, is unhelpful here. That’s, in part, because the volunteer is never thought to ‘own’ the business in the first place. Simply, it is the wrong test.
Cases having to do with the legality of unpaid internships offer little as well because, unlike the ‘true volunteer’, the intern is an employee-in-the-making. A leading Ontario case on the legality of unpaid internships tests language in the Employment Standards Act that refers specifically to “training”, and is ill-suited to the unique nature of the ‘true volunteer’. At any rate, that language no longer appears in the legislation.
The current interpretive manual accompanying the Ontario Employment Standards Act cites two cases [Consumer Liability Discharge Corporation (1981) and Station Street Café (1988)] in its brief section on distinguishing the ‘true volunteer’ from the employee. However, in each case the parties had agreed that the worker would work without remuneration, on the promise that they would be paid after a given period. Therefore, the thrust of these cases is less about what counts as a true volunteer, and is better understood as whether employees and employers may contract-out of the terms imposed by employment legislation. Of course, we know that the answer to this question is “no.” To determine otherwise would undermine the purpose of protective legislation altogether, which exists precisely owing to the employee’s relative lack of power.
This is not to say that there are no exemptions, as a matter of statutory law or via regulations, to the reach of employment legislation. For example, so-called, ‘interns’ who receive academic credit, andamateur athletesare excluded in some jurisdictions. Whatever might be said about the reasons for their exclusion, it results precisely from the fact that under the common law they would almost undoubtedly be considered employees. By contrast, a ‘true volunteer’ is a different entity.
Dearth of Statutory and Regulatory Direction
It is understood that the ‘true volunteer’ is exempt from applicable employment legislation. However, not only is there a dearth of jurisprudential direction regarding how to understand the proper confines of the ‘true volunteer’, there is a dearth of legislative and regulatory direction. The word “volunteer” does not appear in the generally applicable employment legislation in any jurisdiction in Canada and appears in either the associated regulations and/or adjacent interpretive manuals in just under half of all jurisdictions. The most helpful of these references is found within Québec’s manual which contemplates that volunteers “should not exist in a profit-oriented undertaking”.
As the literature on the volunteer sector tells us, the benefits of volunteering are complex and multifaceted. Generally, volunteering is viewed as delivering social benefits – both to the volunteer/their family, and to the wider community. And people are motivated to volunteer for a multitude of reasons. Deciphering these reasons is surprisingly difficult. Traditional accounts of volunteering tend to focus upon altruism. And in the popular imagination, volunteering and the desire to ‘give to others’ go hand-in-hand. Indeed, volunteers themselves often do not desire remuneration, even when it is offered, and, in the eyes of many, “volunteer work becomes less attractive if material incentives are attached to it.” In one US case, an erstwhile volunteer testified that forcing him to take a wage would be “offensive.” Another claimed that the thought of receiving compensation was “vexing to [her] soul.”
A volunteer is sometimes simply defined as “a person who undertakes work without pay”. Lack of remuneration is, indeed, a distinguishing feature of volunteer work. Given, however, that it is impermissible to resile from employment standards legislation owing to the inherent power imbalance within employment relationships, lack of remuneration cannot be the determining feature of volunteer work, without entering the roundabout of an unyielding circularity. How then to proceed? We can look to the US as a first step.
The US Department of Labor, under its regulatory power, defines “volunteer” in various circumstances, and prescribes the kind of work such a worker may perform and still be considered a “volunteer”. From these various regulations we can identify three common elements, each of which can be tested as a matter of fact. One, the organization in question may not be profit-oriented. Two, the worker’s subjective motivation must be “civic”, “charitable” or “humanitarian”. Three, there can be no expectation or receipt of compensation.
Of course, regulatory direction does not mean that there will be no more misclassification – by, either, error or design. A growing jurisprudence is developing in the US regarding misclassification as “volunteer”, guided by the language of these regulations. The subjective motivation of the worker is especially tricky. While the ‘dominant paradigm’ is that volunteering is “essentially an altruistic act” recent research on the voluntary sector concludes that motivations can be multifactored, including a combination of altruism and self-regarding benefits such as acquisition of job skills. Even the International Labour Organization accepts that volunteers can receive “non-monetary benefits from volunteering in the form of skills development, social connections, job contacts” without displacing their status as volunteer. Must a civic, charitable or humanitarian motivation be the only permissible reason for the worker to undertake the work, or will it suffice that it is the main reason? In Brown v NYC Dept. of Education, Mr. Brown’s mixed motivation, including the benefits of “building his résume”, did not ultimately lead to his classification as an employee rather than a volunteer, as Mr. Brown had sought. I believe the case was wrongly decided on its merits. Regardless, the point remains that consideration of motivation is central to a proper determination of the ‘true volunteer’ and these motivations are different from those of an employee.
Neither Fish nor Fowl
Coming back full circle, the design of the student grant program considered the would-be student participants as neither fish nor fowl. There exists a panoply of rights to which all employees are entitled, including the prevailing minimum wage. But, a ‘true volunteer’ cannot be paid; any compensation should be limited to the repayment of out-of-pocket or other expenses incurred owing to the volunteering endeavour. For example, neither the US Department of Labor, nor the International Labour Organization views nominal compensation as violating the criterion that volunteers are unpaid. Recognition in the form of honoraria and gifts should be sufficiently modest so as not to provide extrinsicmotivation, otherwise the necessary intrinsic motivation that helps us distinguish between the ‘true volunteer’ and the merely exploited employee, will be undermined.
In the past few years, much attention has focused upon the issue of misclassification of workers, and, in some jurisdictions, legislative changes and successful legal challenges that make it more difficult to misclassify employees as interns and contractors, have resulted. Concern that this will prompt “creative” employers to now misclassify their employees as “volunteers” signals that the time is ripe for this attention upon misclassification to extend to the “true volunteer”.
Alison Braley-Rattai, “WE and the Legal Status of the True Volunteer” Canadian Law of Work Forum (August 4 2020): https://lawofwork.ca/?p=12934
Mark A. Musick & John A. Wilson (2008) Volunteers (Indiana University Press), at p. 15.
Colin Rochester, Angela Ellis Paine & Steven Howlett (2012) Volunteering and Society in the 21stCentury, (Palgrave MacMillan), at p. 10-11.