Are OHL clubs misclassifying employees?
Some volunteer positions may be skirting labour laws
FOR 10 YEARS, the Hamilton Bulldogs paid Gord Chester a $25 honorarium to work the penalty box at home games. They don’t anymore. The retired Stelco worker says he and several other off-ice officials had their pay taken away when the club joined the Ontario Hockey League at the start of last season. They do, however, still receive some of their old perks, such as tickets and a hot pre-game meal. “We weren’t really there for the money to start with,” the 63-year-old said. “We all enjoy hockey and getting paid was just a little bonus.”
What hasn’t changed is the work. Chester is — and was — responsible for guiding players in and out of the box and keeping track of (often multiple) penalties, including those which aren’t displayed on the clock.
“It’s not like, ‘Oh, I don’t feel like going,’ and you don’t show up, because then they’re kind of messed up, running around on the phone trying to get someone down there as fast as they can,” he said. “You’re committed to it, really.” Chester isn’t alone. Many OHL clubs, including the Bulldogs, rely on volunteers to help with everything from running in-game promotions to ushering to handling complaints from fans.
Most seek them out at this time of the year, generally through advertisements posted online. The practice, however, is contentious. There are some legal experts who question whether the league and its members are misclassifying workers as volunteers in order to skirt minimum-wage requirements and other obligations of employment law.
The OHL says it’s not.
“We believe that we are in compliance with provincial employment legislation that relates to volunteers.” EMAIL STATEMENT FROM THE OHL
In an emailed statement to The Hamilton Spectator, the league wrote that its volunteers are “just that” — “they volunteer for various roles in the league for personal reasons including the students who as part of their curriculum must gain hours volunteering.
“We believe that we are in compliance with provincial employment legislation that relates to volunteers,” it added.
For others, the issue is less clear cut.
The Spectator asked York University’s David Doorey for his opinion on volunteer opportunities offered by the Kingston Frontenacs, Niagara IceDogs and Peterborough Petes. The law professor replied in an email saying generally, if a worker performs work that benefits a business, under the control and direction of that business, they are an employee.
That seems to be the case here, he added, based on a quick reading of the online postings.
Ontario’s Employment Standards Act doesn’t refer to volunteers — a worker is either an employee or not, and most employees are entitled to minimum wage and other entitlements — and the distinction between a volunteer and an employee is a legal grey area, Doorey also wrote.
However, “there are very few cases in which for-profit businesses have successfully argued that workers who do real work for them are unpaid volunteers and not their employees. Businesses are expected to pay the people who do work for them.”
The Ministry of Labour says whether a person is a volunteer is determined on a case-by-case basis by an inspector. Several factors may be considered, including whether an economic imbalance between the two parties was a factor in structuring the arrangement.
Andrew Langille is a Torontobased labour lawyer and an expert on internships and precarious work. He says what these clubs are doing isn’t just employee misclassification — it’s “straight-up wage theft.”
Consider the fact that some of the volunteer opportunities posted by clubs are aimed at teenagers — in some cases, offering community service hours in exchange for work. Langille said an Employment Standards Act inspector would “clearly” find some sort of economic imbalance in that arrangement.
“These are medium-sized employers that are highly profitable,” he added. “This is not, like, a momand-pop operation.”
The OHL disputes that. In an affidavit filed in late December as part of an unrelated lawsuit, commissioner David Branch wrote that around one-third of the OHL’s 20 clubs lose money — anywhere between $100,000 to $800,000 a year. Another third break even, he added, while the final third turn a profit.
Either statement — Langille’s or Branch’s — is difficult to verify. That’s because the majority of OHL clubs are privately owned and do not disclose their finances.
The approaches of local school boards may shed some light on the misclassification question. Consider this: In Ontario, secondary school students are required to complete 40 hours of community service in order to graduate. Hamilton’s public and Catholic school boards will allow them to volunteer in the business and sport sectors (they could, for example, sell 50/50 tickets for not-for-profit Bulldogs Foundation) as long as the work supports and strengthens their community.
But handing out programs for a for-profit OHL club (one of the duties students perform at London Knights games) wouldn’t be permitted in Hamilton since the boards see the activity as something normally performed for wages by a person in the workplace — which means it would fail the Ministry of Education’s test for eligible volunteer activities.
The expectation, said HamiltonWentworth Catholic District School Board chair Pat Daly, is that students are serving others and the community — charities, foundations and so forth.
“To actually be replacing work for a private business would not be permitted.”
In general, the Bulldogs don’t seek out volunteers, because, aside from some off-ice officials, such as Chester, the majority of the club’s game-day support comes from post-secondary interns, employees or other programs.
FirstOntario Centre also pays its ushers, unlike some other arenas in the OHL.
When it comes to changes to the honorarium for off-ice officials, the club won’t talk — the Bulldogs have a policy not to discuss compensation. However, senior operations director Peggy Chapman said fewer off-ice officials are required by the OHL than the American Hockey League, in which the club previously played. Given the option to stay or go, most if not all of the off-ice officials elected to remain in their previous positions as volunteers.
Chapman said the Bulldogs will follow up with the off-ice officials about the situation.
These are medium-sized employers that are highly profitable. This is not, like, a mom-and-pop operation. ANDREW LANGILLE LABOUR LAWYER