Can I try out a potential hire with an unpaid trial?

Every month, Kate Teves, HR consultant, recruiter and founder of The HR Pro, answers Realtors’ questions about anything and everything related to human resources. Have a question for Kate? Send her an email.

Understandably, businesses want to make sure they’re hiring the right person. After all, cultural fit, personal drive, accountability, and the ability to handle a chaotic day are all hard to gauge from a resume or even an interview. Unfortunately, to be thorough, many employers unknowingly walk into dangerous territory by requesting unpaid or loosely paid “trial shifts” before making a hiring decision.

While this practice might seem harmless and even practical, it can expose your business to significant legal, financial, and reputational risks, not to mention creating a negative impact on new hires, which sets a tone of mistrust and uncertainty.

The uncertainty problem: A big red flag for talent

First impressions matter, and this statement applies to all parties involved. Unless you are the only employer in your area and people looking for work have no other options, you, as an employer, are constantly competing with other businesses (in and outside of real estate) for great hires.  

When employers seem hesitant or indecisive, or request three or four interviews, skills assessment or assignment, and a “working interview” without formalizing the relationship, they can inadvertently send a message that the business is unstable, disorganized, or unsure of its own values; alternatively that the manager/business owner has no clarity of what they want or need which will signal more issues on the horizon.

High-quality candidates are always assessing you as much as you’re evaluating them. A lack of structure and clarity raises red flags about the company’s leadership and culture.

One of the most demotivating aspects for a potential employee is being evaluated in an environment that lacks transparency or clear boundaries. Being invited to work without a clear agreement in place makes the candidate feel disposable, like they’re just being “tested” to fill time or cover a shift, rather than being considered seriously as a future team member. This erodes trust before the formal relationship ever starts (if it starts) and can lead to reputational damage if word gets around (and it will).

Legal ramifications in Canada: It’s not worth the risk

From a legal standpoint, trial shifts, especially unpaid ones, are a liability minefield.  We have discussed the volunteering and internships in the previous issue of REM. In Canada, the minute someone begins performing productive work (i.e., work that provides value to your business), they are considered an employee or an independent contractor under employment standards legislation. This means they are entitled to certain protections, including payment, even if the arrangement was informally or verbally agreed upon.

Let’s be very clear:

There is no such thing as a legal unpaid trial shift for productive work in a for-profit business.

Even if the candidate is paid “under the table” in cash, the business could still be liable for:

• Employment Standards Act (ESA) violations

• WSIB (or equivalent provincial worker compensation board) claims

• Payroll tax issues with CRA

• Civil lawsuits if someone is injured or harassed on your premises

Let’s review some actual examples, and if this sounds even remotely like something that can impact your business, please ensure to contract a professional and formalize your contracts to protect your business.

 

Case 1: The real estate assistant with a broken arm (Ontario)

A Toronto real estate team brought on a prospective admin assistant for a one-day “trial” to answer phones and file paperwork. No paperwork was signed, no WSIB coverage was activated, and the candidate was not paid. 

While taking a box of marketing materials down the stairs, she slipped and broke her arm. The team was shocked to discover it was on the hook for thousands in medical and legal costs. WSIB determined she was, in fact, a worker under the ESA and entitled to compensation, even though no formal employment had been offered.

Case 2: Cash “trial” leads to CRA audit (British Columbia)

A brokerage in Vancouver hired a receptionist for a three-day paid “trial” and gave her $100 cash each day. A few months later, she filed for EI but was denied as she had no record of employment. She contacted CRA, which triggered an audit that found the brokerage had been regularly paying contractors and trial workers off the books. The result? Over $25,000 in fines and owed back taxes.

Best practices: Protect your business and your reputation

If you want to assess a candidate beyond the interview, there are safe and professional ways to do it:

• Paid working interviews: If you must bring someone in to observe or perform tasks, put a simple fixed-term or daily employment agreement in place, submit the ROE if applicable, and ensure the candidate is covered under your liability and WSIB policies.

• Simulated tasks: Create a simulation or roleplay task that mimics the job environment but doesn’t involve actual work (e.g., responding to a mock client email or using dummy data). This avoids legal grey areas while still offering insight into skill level.

• Probationary periods: Use a proper onboarding and probationary process. It allows for evaluation within a legal framework and protects both parties with clearly written expectations.

Trial shifts that are unpaid or handled informally may feel like a way to minimize risk, but they often do the opposite. They can create legal nightmares, send the wrong message to strong candidates, and reflect poorly on your professionalism.

Set the tone from the beginning: clear contracts, fair pay, and legal compliance. That’s the best way to build a team that respects you and stays with you.