Sky-high Tuition and Unpaid Student Labour

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Riaz Sayani-Mulji (2L)

Is U of T Law complying with the Employment Standards Act?

For last year’s Orientation Week, an administrator reached out to students to recruit facilitators for the 1L diversity and inclusivity training. When asked how much the student facilitators would be paid, the administrator replied: “The positions are volunteer and lunch will be provided following the session. […] If no students are available, Faculty of Law staff will be the facilitators.”

Oh, U of T Law. The law school will take you for almost $35,000 a year and then expect you to work for them for free. Considering that tuition has skyrocketed, accompanied by minimal growth in financial aid and practically non-existent back-end debt relief, there is something particularly insulting about the Faculty expecting us to engage in unpaid labour on their behalf.

And this isn’t the only example. We have law students writing news releases for the Faculty’s website for free. At the same time, the administrator responsible for “External Relations,” which includes much of the Faculty’s web content, is paid over $100,000 per year.

There is also the Faculty’s student ambassador program, in which students are not paid for the hours they put in recruiting prospective students. (The University of Toronto’s own student tour guide program is a paid position.) When questioned about this, a Faculty administrator replied: “I’d like to think that students would enjoy adding themselves to the activities if they wish. […] If an ambassador couldn’t give a tour, the staff would do it, as they normally would.”

I reached out to an employment lawyer, Andrew Langille (no relation to Professor Brian Langille), to get his opinion on how the Faculty was treating its student “volunteers.” Langille represents precarious, low-income workers in disputes against employers and the state. He is also General Counsel for the Canadian Intern Association.

RS: Take the examples of the student ambassador and tour guide program, and the student facilitators for the diversity and inclusivity training. Would you say the Faculty is complying with employment standards in Ontario?

AL: First off, let’s delve into the law. The Employment Standards Act, 2000 (the ESA) sets a minimum floor of rights for employees in Ontario. The key question in relation to the examples that you gave would be whether the activities of the students attracts the protection of the ESA or would it be considered a volunteer-type role falling outside the ESA. Neither the ESA, nor the associated regulations provides any guidance on the employee vs. volunteer, so one has to turn to the ESA Policy and Interpretation Manuel and the case law for guidance. One has to determine if a person is a “true volunteer.”

The leading case is a decision from the 1980s called Re Consumer Liability Discharge Corporation where a recent graduate offered to work for free. Referee Davis looked at a number of factors such as conferring benefit, whether the arrangement was in pursuit of a livelihood, and whether an economic imbalance was present in structuring the arrangement.

Second, I should state unequivocally that students should be receiving a wage when they’re working for or on behalf of a post-secondary institution. So for the example of the “student ambassadors/tour guides,” if U of T Law considered that to be work that would attract a wage for staff of the JD Admissions Office, then the students should be paid as well.

It strikes me that students here are doing critical work in “selling” the JD program to potential applicants, which is necessary work given that the JD program needs to constantly attract new students. This is a rather clear breach of the ESA and an example of employee misclassification. The “student facilitators” example is even more clear-cut for me.

RS: How common are these unpaid “learning opportunities?” Or work-study programs?” Is this phenomenon of students engaging in work otherwise done by paid employees a recent one? If not, has it intensified?

AL: The University of Toronto runs off precarious and unpaid student labour. What has been created at the University of Toronto is a shadow workforce that labours in fairly precarious conditions for pay that minimal or non-existent. Let’s run through a couple of quick examples.

Consider the thousands of research projects in the various science faculties that rely on undergraduate and graduate students. These students typically aren’t covered under the ESA due to the presence of a statutory exclusion for post-secondary students performing labour as part of their academic program, yet are expected to put in fifty or sixty hours a week as part of their education. The professors and the University of Toronto are benefiting hugely from the unpaid labour these students put in. It strikes me that this is a rather insidious form of employee misclassification and systemic discrimination. This sort of labour is completely off the books and entirely unacknowledged by the University of Toronto.

Work-integrated learning, which is the trade term describing workplace training for secondary and post-secondary students, is increasing across the system. It’s part of the commodification of education and a key aspect of how neoliberalism has supplanted traditional notions of what post-secondary education should be. Instead of engaging in learning as a social good or in furtherance of personal development, now post-secondary education needs to provide a student with measurable skills and a set-career path.

Work-integrated learning has really intensified over the past twenty odd years and worked its way into all types of programs. Work-integrated learning isn’t a necessarily bad thing I should add, the University of Waterloo has a wonderful cooperative education system integrated into a host of programs and has a long history of placing students into paid positions, but that co-op model really isn’t utilized across the system. In the last ten years we’ve really seen an explosion of intern culture globally and in particular in North America.

RS: How is this relevant, if at all, to the struggles of young workers outside of school to find paid employment?

AL: Paid employment is hugely critical for young workers and recent graduates entering the labour market. A person’s life course can be sidetracked by prolonged periods of unpaid labour. Often young folks who fall into the unpaid labour trap have to delay critical life events like starting relationships, having children, getting married, and purchasing homes or automobiles.

Forcing students, young workers, and recent graduates into taking unpaid labour degrades the overall labour market for all working by allowing employers to replace paid positions with unpaid ones and driving down wages. Aside from the employers benefiting from unpaid labour, we all lose out.

The rise of unpaid labour has hit the legal profession rather hard as well. Many summer and articling positions are now being advertised as unpaid. Given the competitive labour market in the legal profession it’s now pretty much a necessity to engage in unpaid labour in some form to ensure that you remain competitive when it comes to hiring.

RS: What can law students do to challenge these unfair practices?

AL: Well, students are increasingly pushing back against demands from employers and post-secondary institutions that they engage in unpaid labour. There’s now room to question such labour practices and ask for changes that could reduce the amount of unpaid labour that academic programs or courses require.

If I was a law student today I certainly would be questioning the structure of the Law Practice Program and how it forces highly indebted young graduates into further debt and unpaid labour. There’s also the labour practices of firms, legal clinics, and legal non-profits which often ask students to work or for free or “volunteer” as a precursor to paid employment. These types of arrangements have to be questioned and resisted as well.

RS: What legislative changes are needed to ensure young workers are paid for the work they engage in, both within and outside of school?

AL: The Government of Ontario is currently engaged in the Changes Workplaces Review, which is aimed at updating the ESA and the Labour Relations Act. I’ve certainly advocated for the elimination of the statutory and policy exclusions under the ESA and the Workplace Safety and Insurance Act that deny students and young workers protections that are critical for their economic, mental, and physical well-being.

The Ministry of Training, Colleges, and Universities (MTCU) and the Ministry of Labour (MOL) need to address the realities that young workers and students face via the rise of work-integrated learning and in the school-to-labour market transition. Right now there’s no leadership coming from the MTCU or the MOL when it comes to the very real exploitation that students and young workers face in the labour market.

The Ontario College of Trades was set up, in part, to regulate apprenticeships in the trades, which are heavily male dominated. It’s clear to me that Ontario needs a similar body to regulate the school-to-labour market transition for professions outside of the trades. Right now students and young workers exist in a very precarious situation where their interests are not being well represented.

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