Short term disability vs long term ego (eg wicked and twill)
Posted: Fri Jul 18, 2008 9:32 pmOriginally started in this thread, which was incorrectly locked by Admin. Site forum mod guidelines are explicit that off-topic posts are moved to this forum. I realize admin might want to shut down this discussion, but do you really want to piss off members more? Not the best way to de-escalate the situation. I understand mistakes are made, I made several myself, but you will be held accountable when not following your own rules. Here's the discussion in it's entirety...
The Chosen One wrote:TWILL and Lack this is taken directly from an explanation of a ruling by the Canadian Supreme Court on what constitutes a volunteer vs an employee. In this specific case it was Campground Hosts, but this ruling has been used as the "gold standard" in all aspects of labor and business as well IN CANADA. According to NAFTA (you know that North American Free Trade Agreement thing), you are bound by this law with ALL your "volunteer workers' whether they be Canadian citizens or not. You might want to read this carefully and rethink your positions on how you've treated/responded to this situation with wicked. Believe it or not I don't give a damn how you run your business, but when you screw around with a person who is recovering from a hopefully short term disability and hide behind your definition of volunteer ... well that pisses the ADVOCATE in me off. Twill keep adopting the condescending attitude and I'll keep bombarding you with the possible legal consequences of that attitude. TCO
Volunteer or Employee? Complications of Bartering for Labour
Public and private RV park and campground operators often rely on the assistance provided by volunteers as an affordable means of providing better service to campers. Such volunteer positions are sometimes referred to as “Hosts”.
Generally, a Host is an unpaid volunteer position that requires the individual to greet and provide information to campers, as well as perform other tasks around the campgrounds, in exchange for a free campsite, often with water, utility and sewer hookups.
Such arrangements can be mutually beneficial and proceed into without any negative consequences. However, hospitality employers should be aware that there are some important pitfalls and potential liabilities that may arise from such “volunteer” relationships.
The main concerns in this respect arise from treating Hosts as “volunteers”, rather than “employees” or “workers”, in light of the requirements under the Employment Standards Act (ESA) and the Workers Compensation Act (WCA).
Employee or Volunteer Under the ESA?
There is no specific prohibition in the ESA with respect to the use of volunteers. However, the ESA is designed to protect employees’ rights and, as such, decision-makers, including the courts, have stated that the ESA’s provisions should be interpreted and applied in a broad and liberal manner in order to afford the protection of the statute to the widest possible group of individuals. Indeed, the definitions of “employee”, “employer” and “work” under the ESA are exceptionally broad and are designed to be very inclusive. In short, these definitions are as follows:
• an “employee” includes a person an employer allows, directly or indirectly, to perform work normally performed by an employee;
• an “employer” includes a person who has or had control or direction of an employee; and,
• “work” means labour or services an employee performs for an employer.
In light of these definitions, depending on a Host’s day-to-day duties and surrounding circumstances, the risk is that the “volunteer” might actually be deemed to be an employee. The typical duties and “work” environment of Hosts vary, but Hosts are often required to:
• collect camping fees from campers;
• pick up litter, clean restrooms and generally maintain campsites;
• look after fire pits and maintain firewood inventory;
• act as safety or security guards;
• work a minimum number of hours per day and/or days per week;
• stay at the campground overnight;
• commit to the Host position for a minimum duration (e.g., a two-week, or one-month stay); and,
• in some cases, work along-side other individuals who are paid employees of the campground operator and who perform services which are similar to those provided by the Host.
When the Host position includes most or all of these features, the Host is more likely than not to be viewed as an “employee” rather than a volunteer, regardless of the arrangement between the Host and the campground operator or their original intentions in this respect.
Of course, the main concern is that the Host, who has occupied the position as an unpaid volunteer, may be able to later claim that he/she was actually an employee and is therefore entitled to be paid wages for all the time they have worked. Thus, the campground operator could be liable for back-wages, as well as interest and administrative penalties.
What about bartering one’s services for a free campsite?
The fact that the Host had agreed to “barter” his/her services in return for a free campsite and/or other items of value will be of no consequence to the Employment Standards Tribunal. In several cases, the Tribunal has stated that such “barter arrangements” are to be given no effect due to the operation of section 4 of the ESA, which provides that the requirements of the Act are minimum requirements which may not be waived, even by agreement between the parties.
Isn’t there an exception under the ESA that might apply to Hosts?
There is no general exception under the ESA that would apply to Hosts.
However, it is interesting to note that some exceptions do exist. For example, the position of “live-in camp leader” is exempt from the minimum wage and hours of work requirements under the ESA. A live-in camp leader is defined as an individual employed by a charity, at a seasonal camp for persons under 19 years of age, to provide instruction and counselling to campers on a 24 hour per day, live-in basis, without being charged for room and board. Rather than being entitled to minimum wages, per se, such camp leaders are entitled to minimum payment of $64 for each day or part day worked. There is no such “exception” for the position of Host.
So, does the ESA allow for volunteer Hosts?
As noted above, the ESA does not prohibit the use of volunteer Hosts or otherwise presume that any person who renders services in the nature of work must be an employee. However, campground operators, and employers generally, must take great caution in the manner in which they engage volunteers to perform services so as to avoid potential liability for unpaid wages.
In order to reduce the likelihood that a volunteer Host could be deemed to be an employee, the terms of the volunteer arrangement should adhere, to the greatest extent possible, to the following guidelines. A volunteer Host should be:
• engaged with clear notice that Host position is an unpaid, volunteer opportunity and that Host should have no expectation of payment for any services rendered;
• permitted to chose the hours during which he/she will provide services, including how many total hours of service will be provided on any given day or week;
• permitted to leave the site at any time;
• responsible for duties that are not similar to those of paid employees working at the same site; and,
• should not be promised any future employment, gain or possible of financial reward.
If the operational requirements of the campground are such that these guidelines cannot be followed, it may be preferable to simply engage the Host as a temporary, part-time employee in accordance with the ESA.
“Worker” or Volunteer Under the WCA?
Like the ESA, there is no specific prohibition in the WCA with respect to the use of volunteers. However, the WCA specifically excludes volunteers from coverage under the Act, raising liability concerns in the event that a Host is injured in the course of performing services.
The WCA applies, generally, to all “workers”. The term “worker” is defined broadly and includes virtually any individual who is paid for services rendered and does not employ other individuals. However, the WorksafeBC Assessment Manual confirms that “volunteers or other persons not receiving payment for their services are generally not workers”.
Workers’ Compensation Appeal Decisions have confirmed that “non-cash payments” may, in some cases, constitute remuneration sufficient to make a person a “worker” under the Act. However, in at least one case, the Appeal Division of WorkSafeBC found that providing food and a place to live was insufficient remuneration or consideration to turn a volunteer arrangement into an employment relationship for the purposes of the Act. Nevertheless, in each case, WorkSafeBC will review the specific circumstances of the relationship and seek to distinguish between voluntary acts and employment on the basis of the nature of the activity and the resulting legal relationship, rather than the motive or purpose of the employer. The concern is that, if a Host is deemed to be a volunteer and therefore not covered under the WCA, then that Host retains the right to sue the campground operator for any injuries suffered in the course of volunteering. This should be contrasted with the rights of a worker under the workers’ compensation system in which that worker gives up the right to sue and, in return, obtains the right to benefits under the Act.
Therefore, campground operators, and employers in general, who use volunteers should carefully review their liability insurance coverage in order to determine if there is satisfactory coverage for volunteers. In particular, careful attention should be paid to any exclusions to such coverage and, specifically, whether the coverage still applies if an event occurs during a period of time that the Host is performing a service for the campground. In the alternative, in the event that a Host is engaged as a paid employee (i.e., a “worker” under the WCA) the employer must register with WorkSafeBC for insurance coverage for that employee.
cena-rules wrote:TCO TCO TCO
ha twill what you gonna do now boy
wicked wrote:wow that's a lot to read.Summary TCO? lol
mandalorian2298 wrote:Sue Lack for wrongful termination.
Get lots of money.
Buy CC.
Fire Twill.
Hire yourself (optional)
It's either that or he is saying that you should host a camp.
The Chosen One wrote:Synopsis of
Volunteer or Employee? Complications of Bartering for Labour
the requirements under the Employment Standards Act (ESA) and the Workers Compensation Act (WCA).
There is no specific prohibition in the ESA with respect to the use of volunteers. However, the ESA is designed to protect employees’ rights and, as such, decision-makers, including the courts, have stated that the ESA’s provisions should be interpreted and applied in a broad and liberal manner in order to afford the protection of the statute to the widest possible group of individuals. Indeed, the definitions of “employee”, “employer” and “work” under the ESA are exceptionally broad and are designed to be very inclusive. In short, these definitions are as follows:
• an “employee” includes a person an employer allows, directly or indirectly, to perform work normally performed by an employee;
• an “employer” includes a person who has or had control or direction of an employee; and,
• “work” means labour or services an employee performs for an employer.
What about bartering one’s services for "free services or product access"?
The fact that the person agreed to “barter” his/her services in return for a free product access and/or other items of value will be of no consequence to the Employment Standards Tribunal. In several cases, the Tribunal has stated that such “barter arrangements” are to be given no effect due to the operation of section 4 of the ESA, which provides that the requirements of the Act are minimum requirements which may not be waived, even by agreement between the parties.
“Worker” or Volunteer Under the WCA?
Like the ESA, there is no specific prohibition in the WCA with respect to the use of volunteers. However, the WCA specifically excludes volunteers from coverage under the Act, raising liability concerns in the event that a Host is injured in the course of performing services. The WCA applies, generally, to all “workers”. The term “worker” is defined broadly and includes virtually any individual who is paid for services rendered and does not employ other individuals. Workers’ Compensation Appeal Decisions have confirmed that “non-cash payments” may, in some cases, constitute remuneration sufficient to make a person a “worker” under the Act. WorkSafeBC will review the specific circumstances of the relationship and seek to distinguish between voluntary acts and employment on the basis of the nature of the activity and the resulting legal relationship, rather than the motive or purpose of the employer.
Sorry wicked, just read the bolds...that is it in a nutshell. You and the other "paid volunteers" have very specific rights which the underlined part explains legally can not be ignored no matter what agreement may have been reached with the admins and other "paid employees".
wicked wrote:Very interesting read. Thanks for the bold help TCO.
The Chosen One wrote:http://www.cra-arc.gc.ca/E/pub/tg/rc4110/rc4110-e.html
I encourage everyone under the admins/owner's control who provides services to the CC site to go read this to determine your status. If you let them do this wicked, you too can become fodder for the egos of the people making the profit off the paying members. I for one as a customer can decide whether or not I want to continue to pay for the services of this business. Still I will not sit idly by and watch people's rights be violated and ignored either, especially not when MY dollars went into the owner's/admins' pockets...I became a paying member because I believed in the CC community...I believed what is still trying to represented by Lack, that CC was more than business, it was community. Well I don't believe that anymore and will respond to this as I would to any for profit business that ignores their employees rights.
jbrettlip wrote:So much of that post refers to the tribunal...what law is that from Survivor island??? Because if that is Canadian law...well we only allow them to stay on our continent since they don't try to break into our country. But we really don't think much of them.
Sincerely,
Another USA-centric American
The Chosen One wrote:jb that is a link directly to the Canadian version of IRS...you have a problem with it, take it up with the Canadian government. I'm not being derogatory toward the Canadians, have met quite a few and the love of my recent life is Canadian born and bred...so don't ass-u-me and don't relate the Canadians to the money grubbers on Survivor... please.
PS the previous rather long post is also taken directly from a CANADIAN Labor Law site ...
you don't need mod powers to move threads!
has now turned her envious attitude back on CC. This is unfortunate for her. 
