Does an Employer Have to Pay a Volunteer in Ontario?

Can a business legally have someone work for free as a “volunteer”? What if the person agreed not to be paid?

This is an important question for both workers and employers in Ontario.

The short answer is:

A genuine volunteer is not an employee under Ontario’s Employment Standards Act, 2000 (ESA), and therefore is not entitled to minimum wage simply because they provide services to an organization.

However, there is an important catch:

Calling someone a “volunteer” does not automatically make them a volunteer under the law.

If the person is actually an employee, an employer cannot avoid ESA obligations simply by describing the person as a volunteer. Ontario's Ministry of Labour specifically warns that employers cannot misclassify employees as volunteers or other types of non-employees.

What Is a Volunteer Under Ontario Employment Law?

Under the ESA, volunteers are not employees.

But the law does not simply ask:

“Did the person agree to volunteer?”

Instead, the actual circumstances of the relationship must be examined.

Ontario's Ministry of Labour identifies two particularly important factors:

1. How much the organization or business benefits from the person's services; and

2. Whether the individual views the arrangement as being in pursuit of a livelihood.

Other circumstances may also matter, including how the arrangement was created and whether an economic imbalance between the parties played a role.

In other words:

The label “volunteer” is not determinative. The reality of the relationship matters.

Does a Volunteer Have to Be Paid?

Generally, no.

If a person is genuinely a volunteer and is not an employee under the ESA, the employer does not have to pay that person minimum wage simply because the person provides services.

For example, imagine someone who voluntarily spends a few hours each weekend helping a charitable organization because they want to support its work.

If the arrangement is genuinely voluntary and the person is not providing services as a means of earning a livelihood, this is much more consistent with volunteer status.

But the analysis becomes more complicated when the organization receives a significant business benefit from the person's work.

“They Agreed to Work for Free” — Does That Mean They Are a Volunteer?

Not necessarily.

This is one of the most important points for Ontario employers and workers to understand.

Suppose an employer tells someone:

“We won't pay you, but you agreed to volunteer.”

The agreement is relevant, but it does not necessarily determine the person's legal status.

Ontario's Ministry of Labour states that the fact that no wages were paid does not necessarily mean that someone is a volunteer. Similarly, the fact that a person receives some form of payment does not necessarily mean they are an employee; for example, a payment could be an honorarium rather than wages.

The question is:

What was the true nature of the arrangement?

A Simple Example: Genuine Volunteer

Consider Sarah.

Sarah has a full-time job elsewhere. On weekends, she voluntarily helps a community organization for three hours.

She:

• chooses when to help;

• does not depend on the organization for income;

• does not expect to be hired;

• is participating because she supports the organization's purpose; and

• is not replacing a paid worker.

These facts would generally be consistent with a genuine volunteer arrangement.

The organization may benefit from Sarah's help, but that does not automatically transform her into an employee.

A Very Different Example: “Volunteer” at a Business

Now consider John.

A restaurant tells John:

“You can volunteer here while you look for a job.”

John works:

• 35 hours per week;

• according to the restaurant's schedule;

• under the manager's direction;

• performing the same duties as paid restaurant employees;

• serving customers;

• cleaning tables; and

• preparing orders.

The restaurant receives a direct economic benefit from John's work.

John is also hoping that the restaurant will eventually hire him.

Calling John a “volunteer” does not automatically make him one.

In this situation, there may be a strong argument that John is actually an employee and should have been paid in accordance with the ESA.

The Employer's Benefit Matters

One of the key factors identified by Ontario's Employment Standards Program is:

How much benefit does the organization or business receive from the individual's services?

This does not mean that every volunteer who helps an organization is automatically an employee.

The question is more nuanced.

For example:

Volunteer activity

A person helps organize a charity fundraising event for a few hours.

The charity benefits from the person's assistance.

That alone does not necessarily create an employment relationship.

Productive business work

A person regularly performs the same productive work that paid employees normally perform and the business relies on that person's work to operate.

That creates a much more serious employee-status issue.

The greater the employer's direct economic benefit from the person's services, the more carefully the arrangement should be examined.

Is the Person Working to Earn a Living?

Another important consideration is whether the person views the arrangement as part of their pursuit of a livelihood.

This is different from simply asking whether the person received money.

For example, imagine someone says:

“I need work experience because I am trying to obtain employment in this industry.”

That circumstance may be relevant.

Now compare that with someone who says:

“I already have my career and income. I am spending Saturday morning helping this organization because I want to contribute to the community.”

The circumstances are very different.

Ontario's Ministry of Labour identifies this distinction as one of the key factors in determining whether services are genuinely being volunteered.

What If the Volunteer Is Paid an Honorarium?

Receiving money does not automatically mean that someone is an employee.

For example, an organization may provide an honorarium to someone who voluntarily participates in an activity.

Ontario's Employment Standards Program specifically recognizes that a payment may be an honorarium rather than wages.

However, employers should be careful about simply calling compensation an “honorarium.”

If a person is actually working as an employee, changing the label of the payment does not necessarily change the underlying legal relationship.

Again:

The substance of the relationship matters more than the label.

What About Family Members Working in a Family Business?

This is another situation that can be complicated.

Ontario's Ministry of Labour specifically notes that, in family-run businesses, the question will often be whether the individual is:

providing services in pursuit of a livelihood or in service of the family.

For example, a family member occasionally helping with a family business may raise different issues from a family member who works regular hours, performs productive business duties and relies on the business for their livelihood.

Therefore, simply saying:

“She's my daughter.”

or

“He's my brother.”

does not necessarily answer the employment-law question.

The actual circumstances should be examined.

Can an Employer Ask Someone to Volunteer at a For-Profit Business?

This is an area where employers should be particularly cautious.

A genuine volunteer arrangement is generally associated with voluntary service rather than a conventional employment relationship.

If a for-profit business regularly uses an individual to perform productive work that would otherwise be performed by paid employees, the business should carefully consider whether the person is actually an employee.

For example, an employer should not assume that it can avoid minimum-wage obligations by saying:

“We don't have to pay you because you're volunteering.”

If the individual is legally an employee, Ontario's ESA prohibits the employer from treating that person as though they were not an employee.

What If the Person Signed a “Volunteer Agreement”?

A written agreement can provide evidence about the parties' intentions, but it is not necessarily conclusive.

Ontario's ESA contains a broad anti-misclassification rule.

Under s. 5.1, an employer cannot treat an employee as though that person were not an employee under the ESA.

Ontario's Employment Standards Program specifically identifies misclassifying an employee as a:

• volunteer;

• independent contractor;

• intern; or

• another type of non-employee

as an example of conduct prohibited by s. 5.1.

Therefore:

A “Volunteer Agreement” does not automatically make someone a legal volunteer.

The first question remains:

Was the person actually an employee?

What Should Employers Consider Before Using Volunteers?

If you operate a business or organization and want to use volunteers, consider the following questions:

1. What is the purpose of the arrangement?

Is the individual volunteering for a charitable, community or personal purpose?

Or are they effectively working to earn a livelihood?

2. Who benefits from the work?

Is the person's activity primarily voluntary service?

Or is the business receiving substantial productive labour?

3. Are they replacing paid employees?

If a business uses a “volunteer” to perform duties that would ordinarily be performed by a paid employee, this should be carefully reviewed.

4. Who controls the person's work?

Consider:

• who sets the schedule;

• who assigns duties;

• who supervises the individual; and

• whether the individual is expected to follow the same workplace rules as employees.

5. How did the arrangement begin?

Was the person independently seeking an opportunity to volunteer?

Or did the business recruit the person to perform unpaid work?

6. Is the person relying on the arrangement for their livelihood?

This can be an important factor in determining whether the arrangement is genuinely voluntary.

What Should a Worker Do If They Were Called a “Volunteer”?

If you worked without pay and were told that you were a volunteer, do not assume that you have no legal rights.

Keep records such as:

• text messages;

• WhatsApp or other messaging records;

• emails;

• schedules;

• time sheets;

• job advertisements;

• volunteer agreements;

• instructions from supervisors;

• records of duties performed; and

• evidence showing that paid employees performed the same work.

These documents may help establish what the relationship actually looked like.

For example, if you were told:

“You are a volunteer.”

but you were also:

• scheduled for 40 hours per week;

• supervised by a manager;

• required to perform regular employee duties; and

• performing productive work that benefited the business,

those facts may be important when determining your status.

What Rights Could an Employee Have?

If a person who was called a “volunteer” is ultimately determined to be an employee, they may be entitled to applicable ESA protections, depending on the circumstances.

These can include:

• minimum wage;

• overtime pay;

• vacation pay;

• public holiday entitlements;

• termination pay; and

• other employment standards protections.

The exact entitlements depend on the individual's circumstances and any applicable exemptions or special rules.

Bottom Line: Does an Employer Have to Pay a Volunteer?

A genuine volunteer?

Generally, no.

Someone simply called a “volunteer”?

Not necessarily.

Ontario employment law looks beyond the label.

The key questions include:

Does the person genuinely view the arrangement as voluntary rather than as a means of earning a livelihood?

and

How much benefit does the business or organization receive from the person's services?

Other circumstances, including how the arrangement was created and whether economic inequality influenced the arrangement, may also matter.

Most importantly:

No wages does not automatically mean volunteer.

And:

A signed volunteer agreement does not automatically prevent someone from being an employee.

If the person is actually an employee, an employer cannot simply label them a volunteer to avoid Ontario's employment standards obligations.

Need Help With an Ontario Employment Matter?

If you are a worker who has been asked to work without pay as a “volunteer,” or if you are an employer who is unsure whether a proposed volunteer arrangement complies with Ontario employment law, getting advice based on the specific facts can help you understand your legal position.

Contact Situ Legal Services to discuss your employment matter and determine what options may be available to you.

Legal Disclaimer

This article provides general legal information and is not legal advice. Employment law depends on the facts of each situation, and the law may change over time. If you are dealing with a specific employment dispute, consider obtaining legal advice about your particular circumstances.

Sources: Ontario Ministry of Labour, Your Guide to the Employment Standards Act; Ontario Employment Standards Act, 2000; Ontario Employment Standards Act Policy and Interpretation Manual;