Sometimes employers ask job applicants to perform tasks without payment as part of the hiring process. But are these working interviews legal in Alberta?
There’s a growing trend in Canada for employers to conduct “working interviews” as part of their hiring process. This involves an employer asking an applicant to perform actual work tasks without receiving payment, as part of the interview.
Some people argue this practice allows employers to better assess an applicant’s skills and fit with the company. But others have raised concerns about the legality of working interviews and their potential for exploiting workers.
So, are unpaid working interviews legal? Let’s take a closer look.
Employment standards
In Canada, laws and regulations called employment standards protect workers’ rights and ensure fair working conditions. These standards establish minimum requirements employers must follow, including providing employees with at least the minimum wage for the work they perform. Each province or territory has its own standards, and Canada-wide standards apply only to federally regulated workers.
This raises a few questions: Who is an “employee”? What is “work?” If an applicant performs work during the interview process, is the applicant entitled to (owed) payment?
In Alberta, the Employment Standards Code says an “employee” is anyone employed to do work who receives or is entitled to wages. The Code defines “work” as providing a service to the employer. These definitions provide the starting point for assessing whether working interviews are legal, but they unfortunately do not provide an easy answer.
Are working interviews similar to volunteering?
We can find guidance on this issue by looking at the similar question of whether an individual is an employee or a volunteer. Let’s look at World Immigration Group (Wig) Corp. v Allado, a recent Alberta Labour Relations decision.
In Allado, three individuals filed complaints with the Alberta Ministry of Labour for unpaid wages and other employment earnings under the Code. They had worked for Immigration World Group, an immigration consulting firm. The company paid them $10 per hour for their work, which is less than the minimum wage in Alberta. None of the complainants were eligible to work in Canada at the relevant times. They were also living with the company’s president at times and did some work at his home. As a defense, the president argued the complainants were volunteers, not employees. Therefore, they were not entitled to the minimum wage.
For the work at the president’s home, the Labour Relations Board found the complainants had no expectation of payment. In the Board’s view, this work consisted of that done by houseguests staying at a house without paying rent. So, the Board concluded the complainants were not employees of the company while performing these tasks.
But overall, the Board had no trouble concluding the complainants were employees when working at the office for the purposes of applying the Code. In deciding the case, the Board noted the following:
[123] The uncontradicted evidence before the Board is that the Complainants did work in the offices that was part of the core, for-profit, business functions of the Employer. The Employer was an immigration consultant. The evidence clearly shows Mr. Allado and Mr. Romero took immigration forms and input information from paper copies onto a computer. Ms. Tambach clearly performed office management functions in Calgary – one of the Employer’s own witnesses described Ms. Tambach performing payroll and time recording duties for that office. The Employer acknowledged there would be clients of the Employer who were assisted by Ms. Tambach on behalf of the Employer.
My take on working interviews
Back to the original question: are working interviews legal?
As Allado suggests, the answer depends on whether the work done by the individual is actual employment. In my view, this will be the case where the work lasts more than several hours and is part of the employer’s regular, for-profit operations. In these cases, employers must pay the applicant at least the minimum wage for all hours worked. Employers must also pay a minimum of three hours at the minimum wage, even if the work for that day lasts less than three hours. These rules apply unless an exception in legislation says otherwise.
However, we must distinguish the above scenario from situations where the tasks done during the working interview are not actual, for-profit duties. For example, an employer at a publishing house may ask a candidate to edit an article to see how well they perform the task. If the employer is not benefiting from the candidate’s labour, and the task is strictly for assessment purposes, this may not be “employment” under the Code.
What about when an applicant expressly agrees to not receive payment for the working interview? The Code clearly says an employee and employer cannot agree to avoid minimum standards. Section 4 reads:
4 An agreement that this Act or a provision of it does not apply, or that the remedies provided by it are not to be available for an employee, is against public policy and void.
So, if the work done during the working interview primarily consists of employment duties, any agreement not to receive payment will be null and void (invalid). In Allado, the employer’s president tried to defend the action by claiming the complainants were “happy” to be volunteers. The Board not only rejected this argument but found it offensive, including because the employer deliberately preyed on the complainants’ vulnerability as foreign workers.
Case law supports greater worker protection
Support for broad protections under employment standards legislation comes from the Supreme Court of Canada case of Machtinger v. HOI Industries. This is still one of the most influential employment law decisions in the country despite being more than three decades old.
The Court ruled employees cannot waive their rights under employment standards legislation. In reaching this conclusion, the Court commented that we must robustly and broadly interpret employment standards in favour of worker protection:
… an interpretation of the [Employment Standards] Act which encourages employers to comply with the minimum requirements of the Act, and so extends its protections to as many employees as possible, is to be favoured over one that does not. In this regard, the fact that many individual employees may be unaware of their statutory and common law rights in the employment context is of fundamental importance.
Where there is a choice between applying the Code’s protections or not, courts will apply the Code’s provisions to as many workers as possible (unless reasons exist not to).
Danger of exploitation
A key concern in working interviews is exploitation. Some employers may deliberately use working interviews to get free labour, without intending to actually hire the applicant. As we saw in Allado, the law seeks to protect the victims of exploitation. But because of the power imbalance between employees and job applicants, it can be difficult for workers to assert their rights.
Where an employer is engaging in unfair labour practices, workers can make a complaint or anonymous tip to the Ministry of Labour. The Ministry in turn can investigate and levy administrative penalties against non-compliant employers.
Where does that leave us?
The law requires employers to pay employees at least the minimum wage for the work they perform. Generally, this means an employer should pay an applicant at least the minimum wage for any work done during a working interview.
Employers may argue this work is part of the interview process and not deserving of payment. But job seekers can challenge this argument can be challenged, and in many cases, the courts will reject it. As outlined above, the law seeks to apply the minimum standards to as many individuals as possible. However, in some cases, an employer may not have to pay the applicant – for example, if the employer can show the tasks are not part of actual work duties and are purely for assessing the applicant’s ability to do the job. Whether an employer’s actions are legal may depend on the specific facts of each case, including whether the employer is exploiting the worker.
If you are an employer conducting working interviews or unpaid internships, talk to an employment law expert to ensure you are complying with all relevant employment laws. Failing to comply could expose your business to liability.
If you are a job applicant asked to participate in a working interview, know your rights. If you believe an employer is engaged in unfair labour practices, contact the Ministry of Labour.
The question of whether working interviews are legal is not necessarily straightforward. But by understanding the legal issues at play, employers and applicants can more effectively navigate this process.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Evan Oikawa
