Class-action lawsuit classifies volunteers as employees

Sunira Chaudhri

Sunira Chaudhri

Toronto Employment Lawyer

A recent groundbreaking class action, featured the case of D’andra Montaque, a plaintiff representing a group of volunteer travel workers at a travel company operating under various companies including Handa Travel Student Trip Ltd.

The common plight of low-income employees is their relative scant access to justice. The tide may be shifting.

 

Class actions are becoming a popular tool for workers to exercise their rights in Canada.

 

A recent groundbreaking class action, featured the case of D’andra Montaque, a plaintiff representing a group of volunteer travel workers at a travel company operating under various companies including Handa Travel Student Trip Ltd.

 

Handa and/or its affiliates recruited volunteer workers to help run travel tours for student-aged groups as ‘trip leaders.’

 

These leaders were required to do pre-travel tasks, travel organization, airport and flight procedures, emergency and on-site procedures, briefing sessions, hotel check-ins and check-out, and return trip organization and procedures. The Defendants paid these trip leaders a small honorarium, less than the minimums required by the Employment Standards Act of Ontario.

 

Notably, the trip leaders signed volunteer agreements explicitly acknowledging that they were volunteers and not employees. They were required to adhere to Handa’s “Destination Staff Manual” that provided a list of expectations for Trip Leaders to follow.

 

These purported volunteers went on trips that lasted anywhere between four to eight days in length.

 

Ultimately, members of this group took the position they were in fact employees and were granted certification in a class action lawsuit in October of 2020. A settlement was approved by the court in June of this year in the amount of $450,000 which roughly amounted to minimum wage payments for each class member for the length of the trips they worked. $100,000 in legal fees was paid in addition to the settlement amounts.

 

It is extraordinary that a group of volunteer workers were able to exercise their rights as a collective voice and seek employment status. The settlement in this case indicates a number of probable outcomes.

 

Most obvious is that employers that are “employing” interns and/or volunteers for free labour may face a similar fate as Handa. Courts generally disprove of workers performing what should be paid work, for free. As the labour market has ebbed and flowed some employers have pivoted to internships, capitalizing on the common desire of an inexperienced worker to beef up their resume.

 

Second, low income, underserved and mistreated employees may use this case as a blue print to organize, perhaps unionize, and launch similar claims en masse to bring misbehaving employers to account.

 

Lastly, gig workers seeking employment status will use class action claims more regularly to modify the behavior of technology companies to acknowledge worker rights.

 

As employment law continues to transform at a breakneck speed, class action claims are sure to contribute to the evolution of the workplace.

 

On to this week’s questions:

 

Q. I received a job offer with a non completion clause in it. I signed it but am now wondering if my employer will still try to enforce it even though they can’t anymore?

 

A. Even though non-completion clauses are illegal in Ontario now, employers could still threaten employees with legal action if an employee moves over to a competitor. While this is no longer legal most of the time, it is still a common tactic. Employees should seek legal advice if moving over to a competitor if a non-competition clause is included in their employment agreements.

 

Q. My supervisor retweets offensive tweets that could be read as homophobic and sexist. A lot of his day goes to spending time on social media. I find it really unprofessional. Even some of my family have forwarded me some of his tweets with shock. It is awkward to say anything to him because he is who I report to. What if any advice do you have to deal with this situation?

 

A. If the tweets are discriminatory go to HR or your boss’ boss. If he is tweeting or posting publicly his conduct is no secret and shouldn’t be condoned by your organization at all.

 

Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.

 

The content of this article is general information only and is not legal advice.

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