"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.
The Law
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.
Thoughts?
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.
Contact Me
To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com 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 Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
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.
Hi Sean,
ReplyDeleteAs a relatively recent graduate, I've often thought that the disconnect is not with articling positions but with law schools. There are a more law schools now than ever, each year producing more students who need practical training to become lawyers, when there is already a shortage of available jobs.
One complaint I have often heard about younger lawyers is that they lack the capacity to run a file. If law schools were designed more as trade schools that actually produced lawyers then articling would not be as much of a crisis since law firms would be apprenticing someone with skills. There would not be so much training or supervision involved. It would be similar to hiring an inexpensive associate rather than a student. The articling would permit a certain amount of supervision and apprenticeship before allowing the student to hang their own shingle.
While I think that there is a place for academic study of the law, I believe that it is better served in a masters or PhD program. Basic law school should train students to draft contracts, run basic trials, incorporate companies, etc. The experience gained could also assist with more clinics, assisting with the access to justice problems across Canada. However, we would be looking at changing law school curriculum world-wide since so many people studying in foreign jurisdictions come to Canada to practice. In my short time practicing, I've meet people from Europe, Asia, Africa, and South America who've all transferred to British Columbia to article and work.
Sean, how does volunteerism fit into your "If it walks like a duck" model?
ReplyDeleteI'm generally concerned about the unpaid internship economy present in many industries, but there are grey areas, and, from a policy perspective, I find it more difficult to challenge volunteer positions with social justice organizations. So an unpaid articling position with a private bar law firm would be, in my view, appalling and exploitative. But an unpaid articling position with a Community Legal Clinic? I can't be so hard on that.
Mind you, not all CLCs are comfortable with the notion, either. I summered at a CLC during law school (a long time ago, when the earth was young), and they had an interesting anecdote about a junior lawyer there. By way of background, this lawyer was energetic, enthusiastic, intelligent, and all-around a great lawyer and great person to work with. But she had relocated to Ontario after law school, late in the articling hiring cycle, and for whatever reason had a really hard time landing a job. One day she showed up at the Clinic, offering to work for free. Squarely your second type of candidate.
They turned her down, but worked with her - they managed to dig up enough funding to enter into an arrangement that would share her articles with another firm in town. When her articles finished, they were able to hire her on as a staff lawyer. Happy ending all around.
But would it have been so bad to accept her as a volunteer? I suppose one could argue that, in having volunteers take some of the strain off of overworked Clinics, we're cultivating a political environment that facilitates systemic underfunding of CLCs...but I think that's a little bit strained. In general, for non-profit organizations doing good works, more volunteers is a good thing. Would widespread unpaid articles result in an end to paid articles at CLCs? That would be a bit worrying, because often the people who are passionate about poverty law are not particularly able to spend a year without income. But it might also result in that funding going to staff lawyer positions instead, which is a net positive on all sorts of different levels.
What's clear to me is that, allowing an organization like a Community Legal Clinic to hire unpaid articling students won't result in nearly the kind of market distortions or economic inequity that unpaid internships cause in the private sector.
(As for the pitch that it allows more people to get their license...I'm not generally a fan of artificially trying to find a way around the articling crunch - the problem is that the market can't currently absorb all the law grads, and we don't solve that by helping minimally-experienced lawyers to hang up their own shingle. Which does, in part, harken to Dana's critique of law schools, but primarily my view is that there are two applicable variables to modify - the number of law school grads, and the absorption rate of new lawyers into the market. Alleviating the articling crunch does nothing to either of those variables.)