"Will litigate for food?" Earlier this month a community legal clinic in Oshawa drew fire after it advertised a 10-month unpaid articling position on Legal Aid Ontario’s official website. But can it do that? Shouldn’t lawyers know better?
Incredibly, the law concerning minimum wage does not apply to everyone. Some employees are expressly exempted from the protections of the minimum standards of the Employment Standards Act, 2000. Among those who are exempted are articling students.
This blog has previously looked at the issue of unpaid internships and I have gone on record saying that, “if what is being done for the ‘employer’ looks like work, then it should be compensated as work.” So how can I now say that not paying someone for work can be legal? Well, there is a difference between legal and right.
Employment standards for employees working in Ontario pursuant to provincial legislation are governed by the Employment Standards Act, 2000. Among the standards set is that of minimum wage.
Part IX, section 23 of the Employment Standards Act, 2000 provides that, “An employer shall pay employees at least the prescribed minimum wage.” The same seems rather straight forward enough.
However, to every rule there is an exception. The Exemptions, Special Rules and Establishment of Minimum Wage regulation, made pursuant to the ESA not only establishes the minimum wage for workers in Ontario, it exempts certain employees from eligibility for the same. Paragraph 2(1)(a)(ii) of the regulation provides as follows:
Parts VII, VIII, IX, X and XI of the Act do not apply to a person employed… as a duly qualified practitioner of… law
Paragraph 2(1)(e) of the regulation extends the exemption provided in 2(1)(a)(ii) to “a student in training for an occupation mentioned…”
So, in short, the protections of minimum wage do not apply to articling students. Ditto a number of other regulated professions.
But Is it Right?
The debate about unpaid internships has been fierce and this issue was no different. A range of opinions was generated when the posting was circulated online. Those advocating for the unpaid position commented that without an articling position another law student would lose the ability to be called to the bar, given that articling is a virtual prerequisite to being called. (Although I do understand that there is some parallel program about which I confess I know absolutely nothing.) On the other hand, there were comments similar to that of Bad Legal LLP, which one sincerely hopes is a parody account, who tweeted, “Not only do these students get to work for legal aid, they also qualify for it!”
Law school is expensive. In fact, one would guess that it has never been more expensive. The line sold to students is that the cost is justified given the potential to earn it all back as a lawyer. Perhaps. However, working for free is not going to help anything.
Moreover, unpaid positions can only attract two types of candidates: (1) Those so insanely rich that they have no worries about paying for law school or anything else; and (2) Those so incredibly desperate for any position that they will sacrifice a year’s wages simply to get their ‘ticket punched.’ Call me a cynic but I believe a position with a legal aid office will attract more of the latter than the former.
So, to whom is this position fair? Is it fair to the student who graduated from law school but, for one reason or another, was unable to land a paid articling position? Is it fair to those students who went to law school wanting to practice with legal aid? And finally, is it fair to who receiving legal assistance from these students? Not to say that the student how may eventually occupy this position may not be wholly competent; but, given the number of students who could afford to apply for such a position, certainly the talent pool has been limited.
I am not sure where I fall on this debate. What I am sure of is that is that work should be paid as work and sometimes the law is simply not fair.
What do you think? Are unpaid articling positions a partial solution to the problem of too many students not enough articling positions or are they simply another step in the erosion of paid labour? Comments can be entered below.
To reach the author of this blog, Sean Bawden, email firstname.lastname@example.org or call 613.238.6321 x260. You may also use the contact box at the top of this page.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.