Unpaid restaurant work exploitative for people in precarious positions

Brianne Middleton once came into work 30 minutes early, changed into her chef uniform and started cutting vegetables in advance only to receive a stern talking to from her boss. Management expected her to arrive at least an hour before she clocked in to complete her prep work — all unpaid.

"It would be like two hours earlier or I would be in trouble," she said, adding other, more experienced chefs in that kitchen would do the same.

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Workers in the restaurant industry say they're often expected to log unpaid hours in the kitchen, or work up to several shifts for free — akin to an audition for a new job. While some defend the practice as an industry standard, others say it takes advantage of vulnerable people and falls on the wrong side of the law.

"I don't think I know anyone who hasn't done it," said Middleton, a Torontonian who has worked in the industry for 14 years. She now works in a unionized position that better protects her schedule.

Sometimes the unpaid work begins in the interview stage with what's known as a stage or trial shift.

The lack of pay may be stipulated beforehand or wages may simply go unmentioned, and the shifts can last between a couple of hours up to a regular eight-hour day. Occasionally, some are asked to work multiple unpaid stages.

Shawn Desjardins was new to the industry when he applied for a job at a Toronto brunch chain and worked an unpaid trial shift in May 2017 after coming in for an interview.

"I was just serving. I was just serving like everyone else was," he said of his four-hour stage, which he said was presented to him as part of the interview process.

The boss asked Desjardins if he wanted to stay on after his shift, which he agreed to do. The restaurant paid him about $15 for the hour after the trial, which included a share of the tips. They wanted to hire him, but for a number of reasons, including discomfort with the unpaid portion of the day, Desjardins declined.

It wasn't until later that he realized the stage may have skirted labour laws.

While these practices may be industry norms, they take advantage of people in precarious situations.

Restaurant workers, in Middleton's experience, skew towards new Canadians or people without economic safety nets, like a wealthy family. That can make it difficult to find a new job even if they're feeling taken advantage of at their current one, she said.

It's an unfair power dynamic between the restaurateur — who typically has more wealth and control — and the potential hire, said Desjardins. The businessperson feels entitled to use unpaid trials to secure a good employee without having to put anything on the line, he said, whereas jobseekers sacrifice their time and self respect.

"It would only come out of desperation and that's really I think the position that people are in," he said.

Not everyone agrees all unpaid labour in the industry is unfair.

Middleton isn't opposed to trial shifts and sees their potential benefit to the employee to suss out whether the workplace culture suits them.

Andrew Dahl, a 32-year-old sous chef at a brew pub in Toronto, fondly recalls coming in early for shifts to get ahead on prep work, though he was never explicitly asked to do so.

He and his young colleagues were thrilled at the opportunity to work in those kitchens back then, he said, and coming in early gave them more confidence to get the job done well.

He doesn't expect the same from the cooks who work for him now and doesn't believe any of his restaurateur friends expect it of their staff either.

The laws regulating restaurant labour vary by province, but where Desjardins and Middleton's experiences took place, these practices appear illegal.

There can be exceptions for everything, but Ontario's laws seems to favour employees in both these situations, said Daniel Chodos, a partner at Toronto-based Whitten & Lublin, an employment law firm.

Chodos, who himself was asked to work unpaid timeat a part-time retail job as a teen, agreed that this often happens to vulnerable people.

"They're not the type of individual who a) has the access to the legal system and b) is as likely to take advantage of it as somebody who is in the upper echelons of earners," he said.

Vulnerable people who want to keep working for their employer are unlikely to bring a claim against them, he said.

In B.C., another province with a large service sector, unpaid trial shifts and unpaid work hours are illegal with few exceptions, said Blair W. Curtis, head of litigation at Vancouver-based Tevlin Gleadle Curtis employment law strategies.

One scenario where an employer could be exempt from payment would be for a student completing a practicum as a component of their educational program.

As for restaurant workers who are asked to come in early for unpaid hours or do a free trial shift, he said, "those are not exceptions.

"Those people should be paid for all the time that they work."

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