If you’re reading this post in the evening, through a mobile device, and you’re still working, you are likely part of Generation Y.
Born between 1981 and 2000, the 12 million Canadian members of Generation Y, have accepted working hours and conditions that, according to a recent article in the New York Times, have coined a new catch phrase in the workplace - “22-22-22” - meaning a 22-year-old willing to work 22-hour days for $22,000 a year. Although the exact figures may differ from workplace to workplace (especially the 22-hour workday), the trend for members of Generation Y is to work more hours, at different locations, through different means, and often for less money or in a volunteer or apprentice-type arrangement for no money at all. While these arrangements may help the “22-22-22” employee get a foothold in the workplace, and gain experience in their chosen fields, there are employment law implications. Here is a snapshot:
Health and Safety in the Workplace
While volunteers and apprentices are not covered by the Employment Standards Act, 2000 (“ESA”) or the workers’ compensation regime in Ontario, employers still have a general responsibility for the health and safety of volunteers and apprentices, visiting or “helping out” in their workplaces under the Occupational Health and Safety Act.
The 22-22-22 arrangement may also result in increased claims for benefits for fatigue, disability or psychological harm associated with working long hours, with little pay, and little security.
Overtime and Digital Labour
The ESA sets limits to the number of hours employees can work, which the 22-22-22 employee (working the “22-hour” workday) easily surpasses, creating entitlement to overtime. With certain exceptions such as doctors, lawyers and mushroom growers (seriously), this entitlement cannot be bypassed by providing salaries or giving an employee the title of “manager”. What may also add to the overtime claim of the 22-22-22 employee is the extent to which hours spent on emails, blogs, or Facebook posts and Tweets will constitute “work” for the purpose of compensation and overtime.
Working for Free: the Unpaid “Intern”
The ESA provides employees with certain rights, including the right to be paid at least the minimum wage. Even if labeled an “intern”, as long as a person is performing work for another person or a company (and the person is not in business for him or herself), that person would generally be deemed to be an employee for the purposes of the ESA. While there are exceptions for trainees or apprentices, as long as a person derives benefit from the activities of a 22-22-22, the unpaid intern should be paid. In other words, while an unpaid internship may be an attractive option for a 22-22-22 employee to gain experience, it is a form of employment that the Ministry of Labour has signaled is problematic and contrary to the ESA.