The debate about a minimum wage for articling students is an embarrassment to the legal profession
The debate about a minimum wage for articling students is an embarrassment to the legal profession, Toronto Star, November 29, 2021.
This month at a meeting of the Law Society of Ontario — essentially, the self-governing board of directors for lawyers — there was a heated debate about whether law school graduates should be entitled to the minimum wage during their first year of work, known as “articling.”
Yes, you read that right. In 2021, a group of elected lawyers debated whether fellow lawyers should get to pay articling students zero dollars for their labour. Even more confounding, a majority of “benchers” — elected members of the Law Society — who participated in this debate appeared to oppose extending the minimum wage to articling students.
Fortunately, the vote on whether articling students should be entitled to minimum wage was deferred to a future meeting — meaning there is still time to change the minds of these benchers. How did we get here? How can it be that there is a serious discussion about legalizing unpaid labour in 2021?
For context, there are three basic requirements to become a licensed lawyer in Ontario. First, you have to graduate from an accredited law school. Second, you have to pass the bar exam. Third, you have to “article.”
Articling typically means working for a legal employer for a minimum of eight months under the supervision of a licensed lawyer. The “debate” currently underway at the Law Society is whether lawyers should get to hire articling students for free or should be required to pay minimum wage.
The fact that this debate is happening at all is an embarrassment to the legal profession.
For starters, it is only by coincidence of history that this debate is even possible. For most workers in Ontario, there is a mandatory minimum wage. However, because of successful lobbying by industry groups decades ago, the Employment Standards Act includes archaic exemptions for various industries and types of work. One of these exemptions if for legal professionals, which includes articling students.
There is no justification for the exemption of legal professionals from the minimum wage. In 2017, the Changing Workplaces Review said the provincial government should make “the review of existing exemptions a priority.”
Yet the exemption for legal professionals continues, as do exemptions for professions like massage therapists, naturopaths and psychologists, as well as farmworkers.
Until the provincial government repeals these arbitrary loopholes in the Employment Standards Act, the question of a minimum wage for legal professionals will be left to self-governing lawyers.
Articling students are among the most vulnerable members of the legal profession. They are often deeply in debt, having gone through four years of undergrad and three years of law school, with tuition now exceeding $30,000 at some law schools. They experience an extreme power imbalance in the workplace, because articling isn’t just another job, it is a condition of entry into the profession.
Disappointing your articling supervisor doesn’t just risk your job, it can derail your career. These conditions of work are already ripe for abuse. The idea that articling students should be denied the minimum wage is just wrong.
Some benchers at the Law Society justify unpaid articling on the ground that there is a shortage of articling positions, so articling students should be allowed to seek unpaid opportunities. This logic is cynical and defeatist. It seeks to cure existing inequities — unequal access to articling — by imposing further inequities: unpaid labour for some.
It fails to ask the basic question: who can afford to work for free, and who cannot? Unpaid articling punishes those who already face the brunt of inequities, those who carry the most debt and cannot rely on family support. It imposes yet another financial barrier to entry in a profession that is already deeply exclusionary.
If a shortage of articling positions is creating discriminatory barriers to entry in the legal profession, then the Law Society has a responsibility to remove those barriers. This could mean subsidizing or incentivizing paid articling positions. It could mean revisiting articling altogether. Unpaid labour is not the answer.
All is not lost. The Law Society vote on a minimum wage for articling students was deferred to a later date. If you care about equitable access to the legal profession, or you simply think all workers should be paid for their work, make your voice heard. Email the elected benchers of the Law Society to tell them why articling students deserve a minimum wage like anyone else.