Many restau­rants still rely on il­le­gal free labour

The Globe and Mail (Alberta Edition) - - ENTREPRENEURSHIP - CHAR­LIE FRIED­MANN

Prac­tice of un­paid trial shifts for would-be chefs is against the law – even if the job seeker agrees to forgo pay

Ata re­cent job in­ter­view for a Toronto kitchen man­ager po­si­tion, the chef in­ter­view­ing James Sut­tar asked if he would work a four-hour un­paid trial shift. He re­fused.

Mr. Sut­tar, who has been work­ing in kitchens for 11 years, is well aware that it’s long been tra­di­tion for prospec­tive restau­rant staff to work un­paid trial shifts be­fore get­ting job of­fers. How­ever, he not only feels it’s just not right to ask prospec­tive em­ploy­ees to work for free, he also knows it’s il­le­gal.

Mr. Sut­tar’s ex­pe­ri­ence is not an ex­cep­tion. In in­ter­views, nu­mer­ous­cooks around the coun­try said they’ve al­ways, or al­most al­ways, worked at least a cou­ple hours free when look­ing for new jobs. Some re­luc­tantly ac­cept it, some ac­tu­ally em­brace it as an op­por­tu­nity to de­ter­mine if the restau­rant would be a good fit for them; oth­ers out­right dis­dain it and be­lieve it’ s abused as away for restau­rants to gar­ner free prep work.

But no mat­ter how these would-be em­ploy­ees feel, Mr. Sut­tar’s un­der­stand­ing of the law is cor­rect: Un­paid trial shifts are il­le­gal. And some lawyers worry that the prob­lem is only go­ing to in­crease in the wake of re­cent changes in On­tario labour law.

Dur­ing Mr.Sut­tar’ s job in­ter­view, the hir­ing chef said he would not be con­sid­ered for the job with­out work­ing the un­paid shift. After, Mr. Sut­tar con­tacted the com­pany, Feast – a provider of grab-and-go meals at its own 24hour kiosk in Toronto’s down­town core as well as through a num­ber of lo­cal cafés – on Face­book Messenger. He asked to speak with a se­nior man­ager so he could air his con­cerns di­rectly.

Ac­cord­ing to screen shots pro­vided by Mr. Sut­tar, the com­pany rep­re­sen­ta­tive who re­sponded sup­ported the chef’s ac­tions, ques­tioned Mr. Sut­tar’s claims that the prac­tice is barred un­der On­tario’s Em­ploy­ment Stan­dards Act and even­tu­ally stopped re­ply­ing en­tirely. Mr. Sut­tar sub­se­quently filed a com­plaint with the Min­istry of Labour. Feast did not re­spond to re­quests for com­ment from The Globe and Mail.

Peo­ple in the restau­rant in­dus­try­often re­fer to these un­paid trial shifts as “stages,” bor­row­ing the term long used to de­scribe vol­un­teers who of­ten work free at top restau­rants to gain ex­pe­ri­ence. How­ever, many in the in­dus­try feel the prac­tice of us­ing un­paid labour can be abused.

“When I was younger and I didn’t know bet­ter, I did a 12-hour stage and I never heard back from them at all,” Mr. Sut­tar says. “That was 12 hours of labour that restau­rant got.”

Richard John­son, a part­ner at Kent Em­ploy­ment Law in Van­cou­ver, says laws across the coun­try clearly pro­hibit un­paid trial shifts.

“The de­fault po­si­tion across the coun­try is you’re not al­lowed to have peo­ple work­ing for free,” Mr. John­son says .“Most prov­inces or ter­ri­to­ries will have ei­ther an act or a code that sets out min­i­mal pro­tec­tions – and un­less you’ve got a very spe­cific sit­u­a­tion like a strictly vol­un­teer pro­gram, peo­ple can­not be forced to work for free.”

The law is usu­ally only en­forced if a prospec­tive em­ployee com­plains – and even those who know their rights rarely com­plain about a short trial shift – so the prac­tice re­mains com­mon­place.

Even Mr. Sut­tar ad­mits that a brief trial shift can have mu­tual ben­e­fits. “It’s an op­por­tu­nity for me to scope out the place and de­ter­mine if that’s some­where I want to in­vest my time,” he says. “But when you’re ask­ing for four hours, you’re ei­ther try­ing to get free labour out of me or there’s some­thing else go­ing on.”

And even if the cook agrees in ad­vance, un­paid trial shifts re­main il­le­gal. “It’s to avoid abuses be­cause you can see that vul­ner­a­ble peo­ple or peo­ple with less bar­gain­ing power end up in a sit­u­a­tion where they’re work­ing for free and that’s just not fair,” Mr. John­son says.

John No, a staff lawyer in the Work­ers’ Rights Divi­sion at Park­dale Com­mu­nity Le­gal Ser­vices, says that the is­sue of un­paid shifts is likely to get worse in On­tario as a re­sult of the Ford gov­ern­ment’s Bill 47, which has re­duced penal­ties for em­ploy­ment stan­dards con­ven­tions. He’s also con­cerned that the Min­istry of Labour or­dered its of­fi­cers to stop con­duct­ing pro-ac­tive in­ves­ti­ga­tions for non-safety re­lated work­place vi­o­la­tions last sum­mer.

“I ex­pect more il­le­gal be­hav­iours from em­ploy­ers in the near fu­ture, not less, un­less the gov­ern­ment re­verse sits ir­re­spon­si­ble de­ci­sions soon,” Mr. No says.

Janet De­line, me­dia spokesper­son for the On­tario Min­istry of Labour, says that changes to pro-ac­tive in­ves­ti­ga­tions “are tem­po­rary and will be re-eval­u­ated as wait times de­crease.” How­ever, to­day most com­plaints still must be filed by em­ploy­ees to gain the at­ten­tion of in­spec­tors. Mr. Sut­tar’s claim, filed through the min­istry’ s web­site on Dec. 4 of last year, has yet to re­ceive any re­sponse.

Jen Agg, an ar­dent ad­vo­cate for im­prov­ing work­ing con­di­tions in the restau­rant in­dus­try, is one of few restau­rant own­ers will­ing to talk openly on the sub­ject of trial shifts. In the early days of her Toronto restau­rant, The Black Hoof, which closed last year after 10 years in op­er­a­tion, Ms. Agg ad­mits that she had job ap­pli­cants work un­paid shifts. “It was in­dus­try stan­dard,” she says. “But even­tu­ally I made com­pany-wide ad­just­ments.”

Now, she in­stead asks po­ten­tial cooks to come ob­serve with­out work­ing to see if it’s a good fit, fol­lowed by a meal to al­low them to prop­erly ex­pe­ri­ence the restau­rant. “It’s im­por­tant to clearly de­fine a brief ob­ser­va­tional shift, ver­sus an ac­tual trial or train­ing shift,” Ms. Agg adds. “We pay for train­ing, which peo­ple seem very sur­prised by.”

An un­paid ob­ser­va­tional shift, if truly vol­un­tary, passes muster un­der em­ploy­ment law but even that prac­tice be­gins to get murky if it’s a re­quire­ment. “There are a mil­lion shades of gray ,” says Kevin Love, a lawyer at Van­cou­ver’s Com­mu­nity Le­gal As­sis­tance So­ci­ety. “But the gen­eral rule is that if the em­ployer re­quires you to at­tend work, you’re to be paid for it.”

Tay­lor Sey­mour, the gen­eral man­ager of Toronto’s Bur­dock Brew­ery, pays job ap­pli­cants for trial shifts. He says that over the years, he’s heard about restau­rant own­ers tak­ing ad­van­tage of un­paid tri­als. For ex­am­ple, “set­ting up a line of stages when you know one of your line cooks is away for the week, and you have a bunch of kids come in and do prep work for free and none of them get hired. I’ve def­i­nitely heard off-hand com­ments where chefs say, ‘I don’t know if they’ll be good, but at least we’ll get prep done to­day.’ ”

Mr. Sut­tar says this sort of mis­treat­ment has pushed many peo­ple out of the food sec­tor and is con­tribut­ing to the dif­fi­culty many restau­rants are hav­ing in find­ing good em­ploy­ees.

“It’s an in­dus­try where there are a lot more jobs than em­ploy­ees now be­cause em­ploy­ees have been treated so poorly,” he says.


Restau­rant owner Jen Agg, seen in Toronto last April, says she used to have job ap­pli­cants work un­paid shifts years ago, but now asks po­ten­tial cooks to ob­serve the kitchen with­out work­ing to see if the job is a good fit, fol­lowed by a free meal to round out the restau­rant’s ex­pe­ri­ence.

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