Is Unpaid Training Legal in Ontario?
- Emily Situ
- 6 hours ago
- 5 min read
Can an employer require you to work for free during “training”? What about an unpaid trial shift?
This is a common question in Ontario workplaces. Employers sometimes describe the first few days or weeks of work as “training,” “orientation,” an “internship,” or a “trial period” and tell the worker that they will not be paid until training is completed.
But calling something “training” does not automatically make it unpaid.
Under Ontario's Employment Standards Act, 2000 (ESA), certain people receiving training from an employer are considered employees and are entitled to ESA protections. In addition, since March 21, 2024, the ESA expressly provides that training includes work performed during a trial period.
The Short Answer
Unpaid training is not automatically illegal, but an employer generally cannot avoid paying an employee simply by calling work “training.”
If you are being trained in a skill used by the employer's employees, the ESA generally treats you as an employee unless a specific statutory exception applies.
This means that an employer may have to pay you at least the applicable minimum wage for time that qualifies as work.
What Does the Ontario ESA Say About Training?
Ontario's ESA expressly includes certain trainees within the definition of an “employee.”
Under section 1 of the ESA, an individual receiving training from an employer is an employee if the skill in which the individual is being trained is a skill used by the employer's employees.
There is an exception, but all of the statutory conditions must be satisfied. Among other things:
The training must be similar to training provided in a vocational school.
The training must be for the benefit of the individual.
The employer must derive little, if any, benefit from the individual's activities while being trained.
The individual must not displace the employer's employees.
The individual must not be given a right to become an employee.
The individual must be told that they will receive no remuneration for the training time.
The important point is that telling someone “this is unpaid training” is only one of the factors. It does not, by itself, make the arrangement lawful.
“I Agreed to Work for Free” — Does That Make It Legal?
Not necessarily.
The Ontario Ministry of Labour specifically states that the fact that an individual did not negotiate for or expect monetary compensation during training does not prevent a finding that the individual was an employee.
Similarly, an agreement to undertake unpaid training in preparation for a job does not necessarily mean that employment only began after the training ended. The Ministry refers to 1153800 Ontario Inc. o/a Baker's Dozen Donuts v. Sherren, 2000 CanLII 4482 (ON LRB), as an example of this principle.
In other words:
“I agreed not to be paid” does not automatically mean “I am not an employee.”
Employment standards legislation establishes minimum legal standards that cannot simply be contracted out of by an employee's agreement.
What About an Unpaid Trial Shift?
This is particularly important for Ontario employers.
Since March 21, 2024, Ontario's Employment Standards Act has expressly provided that work performed during a trial period is considered ‘training’ for purposes of determining employee status. As a result, an employer generally cannot avoid ESA obligations simply by calling a working shift an ‘unpaid trial.
For example, suppose a restaurant tells a job applicant:
“Come in for a four-hour unpaid trial shift. If we like your work, we'll hire you.”
The applicant is asked to wait tables, take orders, serve customers and perform the same skills used by the restaurant's employees.
The fact that the applicant has not yet received a formal employment offer does not necessarily mean the applicant is outside the ESA.
Ontario's Ministry of Labour specifically gives the example of a restaurant candidate performing a trial shift to demonstrate their ability to wait tables. The Ministry states that the person is an employee under the ESA and that the hours worked during the trial period must be counted as work time.
A “trial shift” is not automatically free labour.
If the person is actually performing work for the employer, the employer should carefully assess whether the ESA's employee and training provisions apply.
Training vs. Interview: There Is an Important Difference
Not every activity before a person is formally hired is necessarily paid work.
For example, a normal job interview generally does not mean that the applicant is an employee.
There is a significant difference between:
Interview:
“Tell us how you would deal with an unhappy customer.”
and:
Trial work:
“Work the restaurant floor for four hours today and serve our customers so we can decide whether to hire you.”
The second situation presents a much stronger issue because the person is actually performing work during a trial period.
The ESA now expressly includes work performed during a trial period within “training.”
What About Orientation and Mandatory Training?
Not all training is treated the same way.
Ontario's Ministry of Labour explains that time spent by an employee in training that is required by the employer or by law is considered work time.
For example, if an employer requires a new employee to complete training as a condition of starting or continuing employment, that training time is generally counted as work time.
By contrast, training that is not required by the employer or by law for the employee to perform their job may be treated differently. The Ministry gives the example of an employee voluntarily taking training in order to qualify for a promotion.
Therefore, the important question is not simply:
“Was this called training?”
Instead, ask:
What was the person actually doing, why was the training required, who benefited from it, and what skills were being trained?
What If the Employer Says: “You Are an Intern”?
The label does not decide the legal issue.
Calling someone:
an intern;
a trainee;
a volunteer;
a student; or
a probationary employee
does not automatically determine whether the ESA applies.
Ontario's Ministry of Labour states that someone called an “intern” or “trainee” will generally be considered an employee if they receive training from an employer in a skill used by the employer's employees, subject to applicable statutory exceptions.
There are specific exceptions for certain approved educational programs, including qualifying programs through colleges, universities and secondary-school work-experience programs.
What Could an Unpaid Worker Be Entitled To?
If the individual is an employee under the ESA, applicable employment standards may include:
minimum wage;
overtime pay;
vacation pay;
public holiday entitlements;
termination-related entitlements; and
other ESA protections.
The exact entitlement depends on the circumstances, the employee's position and any applicable exemptions or special rules.
For most Ontario employees, the general minimum wage is currently $17.60 per hour until September 30, 2026. It is scheduled to increase to $17.95 per hour on October 1, 2026. Certain employees are subject to different minimum wage rates.
What Should Employers Do?
If you are an Ontario employer, do not assume that an unpaid training period is lawful simply because:
the worker signed an agreement;
the worker agreed to work for free;
the worker has not technically been “hired” yet;
the worker is called a trainee or intern; or
the training is described as a trial period.
Before implementing unpaid training, consider:
What exactly will the individual be doing?
Will the individual be performing work normally performed by employees?
What benefit will the employer receive from the individual's activities?
Is the training primarily for the individual's benefit?
Does a statutory exception apply?
Is the arrangement actually a trial period involving work?
Are there industry-specific rules or exemptions that apply?
Getting this wrong can expose an employer to claims for unpaid wages and other ESA entitlements, as well as potential enforcement consequences.
Need Help With an Ontario Employment Matter?
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
