Is Unpaid Training Allowed?
Employees often undertake additional training to ensure that they have the skillset necessary to contribute effectively in the workplace. Sometimes training sessions are at the behest of the employer while at other times employees independently seek out additional training to make sure that they remain competitive at their job. Employer and employees alike often wonder whether employees should be paid for attending training sessions. This blog looks at the issue of unpaid job training in Ontario, what employees’ legal rights are with respect to unpaid training and what employers should know to ensure that what they do with respect to unpaid training does not conflict with the legal framework in place.
Most of the time unpaid training is not allowed under the Employment Standards Act
In Ontario, employers need to pay employees for their time undergoing job training when that training is required by the employer. It does not matter if the employer asks the employee to attend training during a “trial period.” This rule is set out in Ontario’s Employment Standards Act (“ESA”). For example, it is common that an employee needs to be trained when they start a new job to learn certain crucial skills to perform the tasks necessary of that job. As such, the employer demands that an employee spends certain time in training. In those situations, the employer needs to pay that employee for their time training.
The ESA is Ontario’s statue that establishes the minimum rights of Ontario’s employees. For example, the ESA sets out what the minimum wage is, how much vacation time an employee is owed by the employer and what, if any, overtime pay is owed among other things.
However, there are exceptions
There are some circumstances where the employer is in fact not obligated to pay an employe for training. The criteria that must be met for training to be unpaid is that the training is voluntary (meaning that the employee decides to undertake training based on their own reasons and it is not required by the employer). Examples, of voluntary training may be training that is not directly related to the employer or the workplace or training that takes place outside the workplace on the employee’s own personal time.
The case of internships
Are unpaid internships illegal? The answer is: more than likely but not necessarily. To determine whether an unpaid internship is illegal will be dependant on several considerations. In Ontario, if an “intern” is just a synonym for “employee” then it would be illegal for an employer to not pay an intern/employee for their time participating in “training.”
However, many internships are related to a person’s education which also maybe related to the employer but not necessarily so. So, in those cases where a person is undertaking training for the purposes of a high school, college or university co-op program, placement or internship, then they would not be considered an “employee” as set out in the ESA and their time spent training could be legally unpaid. It must be noted that at times there may be a gray area in which a student may be getting “experience” and time training at a business or company should still be paid despite a seeming connection to that person’s education. The crux of the issue may be whether a person is receiving credit for that internship related to their education in an official educational setting (such as an university or college) for that training to remain legally unpaid.
How can an employment lawyer help?
An employer should contact an employment lawyer before implementing any job training if they are unsure as to whether the employer should pay the employee (or maybe “intern”) for the training time. An employment lawyer can review the employer’s legal obligations with respect to training and ensure that the employee remains compliant with the ESA.
Further, in situations where an employee is being asked by an employer to participate in unpaid training, an employment lawyer can assist the employee in responding to the request and determine whether the request for unpaid training is contrary to the ESA. If an employee has already undergone unpaid training, an employment lawyer can also assist the employee in making a claim for those wages either directly to the employer or through the Ministry of Labour. There are a few ways to tackle this problem in either situation with varying degrees of complexity (one could even possibly make a claim for constructive dismissal) and it would be best to contact an employment lawyer so that the employee is in the best possible position to handle these issues.
