May 16, 2017
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. However, tourism 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 most likely 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 (including overtime pay), 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 $133.69 for each day or part day worked (as of June 1, 2023). 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 the Host position is an unpaid, volunteer opportunity and that Host should have no expectation of payment for any services rendered;
- permitted to choose 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 possibility 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.
Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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