Will Legalities Choke Off Online Volunteerism?

friartux writes: "Adrenaline Vault reports on a clash between volunteers and AOL. The story details how volunteers who receive perks may make the company subject to minimum wage laws. So how might this affect open source projects, where a company offers hardware in exchange for drivers?" It's quite a long article, and the AOL-vs.-volunteers angle is only one aspect of the story, as friartux points out. Perhaps relevant to many Slashdot readers is that scrutiny of payment-in-kind could affect online gaming participants who trade their time and skill for free access to servers and other resources.

Games And Volunteers

I'm the same Dave Rickey that was quoted in the article. I used to be the Asst. Head Gamemaster (paid in-game customer support) for EverQuest. I've been playing these games for basicly forever, and I now work for a different company (Mythic Entertainment) developing them. I've been playing these games about as long as they've been around.

I want to throw some numbers at you, so you can see how bad this is. It takes about 2000 manhours a month, *minimum*, to support a 1500 peak population game server for Customer Service (that is barely enough to keep complaints of poor service to a dull roar). Most of the issues that come up are minor ones, requiring few special "powers" in the game context, nothing you can't entrust to someone you have no real hold over (since you don't pay them, you can't really fire them). A paid CS rep costs about $15/hour between wages and overhead. 2000 * $15 = $30,000. Revenues from subscriptions for a server that will peak at 1500 players? About $45K. Before you go "Aha!", remember what else has to be paid for out of that, bandwidth and servers and miscellaneous overhead. By the time you figure it out, such a server would actually be *losing* $5-15K every month.

Obviously, nobody is going to operate a game that is losing money. So what is going to have to happen is that CS will suffer. And the number one complaint from players of OLRPG's right now is that CS *sucks*. Always has been.

But it's more than that. This opens up a whole can of worms that the games industry *really* doesn't want to go near. For example, iD software released Quake 3 Arena with minimal included gameplay, essentially Deathmatch only, with the expectation that more sophisticated gameplay would be developed by the fans, volunteering their time to finish iD's game. Are those third-party authors now entitled to royalties from iD?

The "Volunteer" programs certainly didn't start out with the intent of getting free labor. They got started because their were roles the community needed filled, that could *not* be cost-effectively filled by paid personel, so people literally *begged* for the tools to fill those roles themselves. Giving them free accounts was just a "perk", it was never intended as compensation.

They still can't be cost-effectively filled by paid personnel. If profit-making enterprises can't use this volunteer labor, then these tasks simply aren't going to get done, and the communities will suffer as a result.

And that's an important distinction. These people are not volunteering to provide the game companies with free labor, they are volunteering to assist their community, which happens to center around a game. These communities can and do have an existence above and beyond the games they are based on. They can and have picked up in their entirety and change games. They can and do survive the the complete dissolution of their games.

You can volunteer to serve your community without pay, even though your community is not a charitable organization. It's legal for companies to adopt a mile or two of highway and have their employees out there picking up trash on their own time (it's even legal for them to make raises and promotions dependant on participation in this "volunteer" program). The armed forces pay *far* less than minimum wage to junior enlisted personnel. I'm not sure that it's possible to have the game communities given the same legal recognition that geographical ones have. But I certainly do believe they should have it.

This is far more complicated than "Greedy Corporation Exploiting Free Labor", no matter what lawyers trying to shake money out of deep pockets may say. Nobody required these people to perform a service for the community, and if the companies benefitted it was only as a side effect.

--Dave Rickey

Re:Contract of employment?

Surely if the employee has no contract of employment, he/she isn't considered an "employee" in legal terms

No.

The term "employee" is defined various ways by various agencies, both state and federal, in the U.S. The existence of a written contract is just one factor in determining whether someone is an employee. There are generally 20 common law factors that are used to determine the employee status of a person. It absolutely does not matter if either or both the parties involved say they are or are not in an employee-employer relationship. The actual facts and circumstances of the situation determine if an employement situation exists.

For a short (perhaps too short) look at the way the Social Security Administration codifies these factors, look here. [ssa.gov]

For a readable, slightly expanded re-statement of the factors, look here. [wsu.edu]

And for more than you ever wanted to know, look here. [findlaw.com]

What about volunteers outside the US?

(IANAL) From a regulatory perspective, this could get hairy. Let's imagine for a moment that a US-based online gaming company decides to start paying its "volunteers" the minimum wage. What does this mean for the volunteers who are not US citizens or residents?

• Would they need to get green cards to be allowed to "work" for the gaming company? Their employer is in the US, but they are not, and likely will never be.
• To be permitted to pay non-US volunteers, would the gaming company first have to prove that that there was a shortage of US volunteers? If so, how could they possibly prove this?
• Would non-US volunteers have to pay taxes to the US government? The complexity of the US tax forms is legendary...just the mere threat of having to fill them out each year would probably be a sufficient deterrent to non-US volunteers. :)

Next, let's flip the above scenario. What would happen if a non-US-based online gaming company were using a few US volunteers? What sort of red tape would this mean for them?

Finally, how could the gaming company ever really know where their volunteers were based, anyway? It could be possible for a non-US volunteer, for example, to obfuscate his geographical location in such a way as to appear to be working from inside the US.

Sounds like a potential goldmine for the lawyers...

Re:Well...on Labor Day (US) think about it...

How on earth do you justify a corporation using intimidation and fear to force people to toe the line? When they are NOT paid?

If you weren't being paid or otherwise compensated, how did they intimidate you?

I'm reminded of the Stanford Prison Experiment...

- Michael Cohn

Re:This is an unrelated case . .

The key point in the AOL suit is that AOL's reliance on volunteers was essentially a substitute for hiring paid employees. The lawyers are taking advantage of the volunteers being given free subscriptions to AOL to say that they were, in fact, employees who were being paid for their services.

Volunteers for the Open Directory project are not being paid in any way. What would they be paid with, anyway? ODP is a non-profit entity. And that's what makes the AOL case a completely seperate matter from real volunteerism. AOL's community leaders were working for a corporate entitity with a profit motive. ODP is non-profit. FSF is non-profit. LDP is non-profit. Gutenberg is non-profit. Volunteers for these organizations are working out of their own charity with no expectation of compensation. What AOL was doing was enticing "volunteers" with the prospect of free service. And if they stopped "volunteering" they'd have to start paying their $21.95/month. I'd pay the same to access dmoz.org whether I volunteered there or not. (That is, US$0.)

So while this may be a concern for outfits like RedHat or Andover, it's a non-issue for non-profits and real volunteers.

And it must apply to Slashdot too

The countless quality comments that I have written to Slashdot over the years have added a great deal of value to the property.

This can be objectively proven by the anonymous moderating Slashdot users, who characterize the majority of my comments as high quality; and exactly the sort of content they are interested in reading: funny, informative, interesting and/or insightful.

My content has both increased the number of people who are interested in reading the site, and the "stickiness" of the Slashdot site. Also, the fact that my comments have been archived indicates that Slashdot is leveraging all my work, despite the fact Slashdot freely admits that as the poster of my comments, I own them.

Therefore, I am hereby declaring that I am a de-facto worker for Slashdot. My demands are not high... I only expect to be paid what I have been worth to the company. Since I've been posting these highly valuable comments for well before it became valuable, was sold/partnered and subsequently IPO'd, I shall accept nothing less than 0.01% of VA Linux stock.

I shall expect further instructions on how we can both codify our contract with each other. However, lack of response to my message by September 29, 2000 shall represent a de-facto acceptance of my terms.

I want loot by the end of the month, or you'll be hearing from my attorneys. Gentlemen, have a nice day.
--

Re:Well...on Labor Day (US) think about it...

Face it, there's a few people getting very, very rich off the labors of a bunch of volunteers...

No truer words have ever been spoken, this isn't about myself of Brian Williams, my co-plaintiff, trying to get rich, its about us trying to stop an employer, AmericaOnline, Inc. from exploiting individuals in order to turn a profit.

I personally will receive one weeks back pay for the Federal suit, the person who started the DOL investigation will not receive a dime, Mr Williams will not receive much in monetary compensation either, this suit was not created for money nor :revenge", it was created because America's Largest ISP is breaking Federal and State Labor Laws, as well as tax laws.

If there is a party to blame about the reprecussions from the suit, blame AOL, they knowingly broke the law, we can only be blamed for being stupid enough to be the free labor.

Kelly Hallissey www.observers.net

Well...on Labor Day (US) think about it...

(NOTE: IUTBAL, which means I can say IANAL now, but couldn't always say that...;^) )

The problem is essentially one of scale, and context. When is volunteering OK, and when is it exploitative? For example, I'm a salaried employee, so if my company has something that absolutely has to get done *now*, they can compel me to drag my butt in on the weekend or take it home and get it done. They can't do the same to my hourly coworkers, unless they're willing to pay them for their time. Even if it's a really, really cool project and lots of fun to work on, those guys can't come in without being paid for it - no volunteerism allowed?

Why is that? Well, let's say my employer realizes that a bunch of them are willing to come in and volunteer, but a bunch more are only willing to come in if they're paid overtime. All other factors being equal, which group's labor is in the company's best interest? Why, the free ones, of course! Volunteerism is great for the bottom line! In fact, some of what my chunk of the company does could even be done by totally unrelated people, who might like the chance to come in for a weekend and do some work for us, on a purely volunteer basis, of course. More free labor! More profit!

So let's get back to AOL. Those community leader types are doing some very valuable work for the company. Without their labor, AOL wouldn't be such a compelling place for those who are compelled to use AOL. (Don't ask me why people do that; not my tastes, but it's obviously a big deal to the masses.) If all of the community leaders were to disappear, AOL would actually have to hire and PAY people to do that work. Which means, therefore, that the work that volunteer community leaders do has real economic value, and by not compensating them for that work, AOL benefits off their exploitation.

There is, of course, the question of whether one can be exploited without their permission. I can see some circumstances where people might volunteer for what would otherwise be a paid position in hopes of gaining employment. That's definitely something that a ruthless company could exploit. "Not this week, but maybe next week I might find you a paying job. Keep on volunteering!" It happens. Here where I live, it happens with farm laborers pretty often, in fact. It's a way of milking free work and avoiding paying people.

Implications for open source are pretty interesting. As long as contributors are essentially "independent contractors", release their work under a license (GPL's a nice one. :^) ), and aren't solely volunteering their work to one single entity, I think they might be OK. Problems arise if, say, someone writes a nifty utility that they only give to Microsoft (as an example), and Microsoft thanks them for their "volunteerism", incorporates the utility, and gets even filthier rich off it - that's a problem. Essentially, if I write something for my personal business, where I'm my own employer, and then choose to give it away, that's cool.

Make sense? (As much sense as legal stuff can, anyway?) - I haven't followed the AOL case too rigorously, but don't think it's necessarily evil. Face it, there's a few people getting very, very rich off the labors of a bunch of volunteers, and giving them free AOL access doesn't begin to compensate them adequately for the benefit they bring (and the profits S. Case et al. make off their work).

This is proper labor law

And on Labor Day weekend, we should think about it.

A profit-making company in the US can't use unpaid volunteer labor. Even "internships" are on shakey legal ground; hospital interns in Boston are forming a union. And the definition of "independent contractor" isn't up to the employer, either; it's defined in the Fair Labor Standards Act. Factors which have been found to be useful in distinguishing between employees and independent contractors for FLSA purposes [thegroup.net] are:

• the degree of the alleged employer's right to control the manner in which the work is to be performed
• the alleged employee's opportunity for profit or loss, depending upon his managerial skill
• the alleged employee's investment in equipment or materials required for his task, or his employment of helper
• whether the service rendered requires a special skill
• the degree of permanence of the working relationship
• whether the service rendered is an integral part of the alleged employer's business.

Usually, if the employer controls the work, it's employment. This clearly applies to AOL's attempt to recruit unpaid customer support people. In the game world, it's less clear. Schemes where players can page any on-duty game counsellor for tech support look a lot like employment, though. Especially if the service insists they be polite and responsive. That's employer control.

A co-op game service, where the members actually owned the service, wouldn't have this problem. But where the members aren't owners, it's probably employment. (A phony co-op tied to a commercial service wouldn't work; among other things, the IRS looks closely at ties between non-profit and profit-making organizations, because that's usually a tax dodge.)

Re:Well...on Labor Day (US) think about it...

You knew, getting in, that AOL was a FOR PROFIT COMPANY.

You _VOLUNTEERED_

If you decided that your time was worth 20 bux/month, then that is what it's worth. There's no going back and saying "Oh, I deserve more money, gimme more or I'll SUE." In other words, *you* decided that your hourly wage was 20/time, NOT AOL.

You could have told AOL to stuff it and use your precious time for something more productive, but you didn't. As someone who volunteers here and there, I have _no_ sympathy for your poor choices. You screwed _yourself_, bud. Nobody isted your arm to volunteer. Comparing yourself to someone who is getting slave wages in a third-world country is beyond intellectual dishonesty, it's so indescribably macaronic that for me to find a shred of intelligence, I'd have to consult the ghost of Moe Howard.

Go AWAY. Don't EVER volunteer for ANYTHING ever AGAIN.

You guys are going to scotch it up for anyone who wants an internship in a for-profit company, for people who need to get *experience* so they can get *hired for real*, and for people who do such things for Fun and Self Satisfaction. The latter is what you SHOULD have used as a criteria for volunteering for AOL. If this was not the case, then you need your head examined.

If there's something wrong here, it's your SELF SERVING and SELF RIGHTEOUS attitude. It's not about "fair wages" on your end is it? It's about your "pound of flesh". Fine, then you've just earned the scorn and derision of anyone who's truely done volunteer work.

which raises an interesting question

if AOL is subject to minimum wage laws, what about other, more traditional volunteers?

almost every organization that is a volunteer organization offers some sort of perks, and much of it should be expected...

a hardware company can't expect people to write drivers -and- buy their hardware...just as a volunteer fireman can't be expected to bring his own fire truck...

second question is, how can the perk be compared to wages? when the "payment" is access to a service, especially one that can't be bought, and so doesn't have a retial value) how does that compare to monetary wages?...

IMO this shouldn't be considered hired work...it's more similar to a temporary "you scratch my back, i'll scratch your" agreement, and as long as both parties involved are satisfied, no intervention should be necessary....

Wait a minute.....

From the article:

"Due to changes in the industry regarding volunteers, effective Sept. 30, 2000, OSI will no longer provide free player accounts or other added value to members of all [Ultima Online] Volunteer Programs."

So, if I'm reading this correctly, OSI (in this case) isn't actually terminating the Volunteer Programs, but just eliminating any of the perks/compensation that go along with it. Does that actually shield them from lawsuits? Or does it change the claim from "You aren't paying me minimum wage for my work!" to "You aren't paying me at all for my work!"?

Either way, legal necessity or not, these companies are shooting themselves in the foot PR-wise. It's a lose-lose situation.

Although reading this article made me wonder what the legal distinction between "employee" and "volunteer" is. Is a volunteer just someone who willingly works for nothing? Is an employee nothing but a compensated volunteer?

Rationally, if one of these volunteers isn't happy with the perks they're getting, no one's forcing them to be a volunteer. I seriously doubt people are making any kind of living off of this -- they surely have a real job or something. So wouldn't that rationally (note: not necessarily legally) render the point moot?

--

READ THE FREAKING ARTICLE

AOL volunteers have already sued AOL [internetnews.com], it's even been on here on slashdot [slashdot.org].

Frankly the lawsuit is the most frivolous lawsuit imaginable. These people volunteered to monitor chat rooms and the like for AOL and one day suddenly realize that they would rather have gotten pay and sue AOL. From this story it seems that other companies are reviewing their volunteer policy based on the frivolous lawsuit because if someone can volunteer to do work and later sue for back wages, then someone else who receives non-financial payment for services rendered has an even stronger reason to sue for back wages because they are more likely to have been thought of as employees deserving payment by a court than a volunteer.


(-1 Troll)

Handbook on Minimum Wages

The DOJ publishes a handbook [dol.gov] for small businesses about minimum wage laws. There do exist exceptions, and if I were with AOL, I'd explore one or more of the following:

Certain types of farm setups are exempt. Perhaps the number of sheep subscribing to AOL could get them certified as a farming operation.

Fishing operations are exempt. With all the trolling of AOLers, ditto.

Casual babysitters and people who care for the infirm are also exempt. See what I'm getting at?

Adding in an AOL reply

Me too!

Re:The end of AOL!? :-)

As a former 'community leader', it is very easy to understand what brought this about. I left after AOL made numerous changes to policy about -everything- and were essentially mandating that we all do jobs for which we didn't have the authority or tools to do. Try reading 300-500 board messages a day, file upwards of 20 TOS reports, and answer numerous emails in less than 4 hours and you can begin to see the problem. In addition, the area that I worked in pretty much required a 20 hour a week committment, with no more than the promise of a free account and a lot of hate mail. It was also next to impossible to get new volunteers, because of the serious obstacles that AOL placed between them and getting training.

If AOL is being sued, given the numerous changes that were designed to only benefit the bottom line on the backs of a workforce that they are -quite- willing to exploit, then the suit is justified. Minimum wage laws may well be the extreme form of redress, but who on earth would think that people putting in the kinds of hours many volunteers have should be denied something more in the way of fair compensation for the time they give?

Steve Case will do anything to make money.

This is an interesting case . .

. .but it will sink like the titanic.
From the article:
"While company representatives have not said so outright, it appears the move to eliminate what amounted to a $10 a month gratuity for volunteers is related to a recent New York class action lawsuit, brought by former volunteers at America Online (AOL). The plaintiffs are claiming that AOL's practice of relying on what it calls "community leaders" to produce, maintain and moderate online content was tantamount to employment, and hence is covered by American minimum wage laws."

I helped maintained a few Forums for many years on Compuserve out of the the love of the topic I was working with. When my priotities shifted and I no longer had the time to maintain that forum, I'm sure there were other member waiting to help out. In return for helping with so many forums, they gave me free access and made me a "helper" for a few months.

Consider, for a moment, what www.dmoz.org/ [dmoz.org] is doing with the open directory project. A small group of people using their life experiance and expertise to help other people find relavant information on the web. Once again, this is done out of kindness for the comunity and not for some kind of return. The ony payment is in the satisfaction of a job well done.

The problem with the volenteers is that they're "hooked" and the thought of them just stoping their on-line activity seems forein to them. "Wha?!? give up AOL? ? That would be like not breathing??", they might say, and there is the problem.

If you feel like you should be getting payed for the volenteer work you're doing, you're doing to much, and you should stop. The thought of holding AOL somehow liable for this very generous and fair bartering agreement is just daffy!

One more note: this is a class action suit brought for the volenteers. I smell a team of lawyers in bad suits looking to score easy money.

Profit and Non-Profit

What's at issue here is the definition of employment. If you provide a service that has monetary value to a non-profit organization or charity, that is true voluntarism. However, the concept of voluntarism is not applicable when the organization you're doing it for is profiting from your labor. Volunteering to assist on your favorite free MUD is one thing, as no one's really making any money there. But volunteering for Ultima Online is another, since EA saves massive amounts of money on support costs because you're there- and they definitely pocket all the money. I suspect that in the future online game companies will create a separate corporate entity which all volunteers join when accepted, and that company will have a contractual relationship with the game company to provide support in return for free accounts or whatever, just to dodge labor law.

--Perianwyr Stormcrow

Re:which raises an interesting question

The point of the minimum wage law is to prevent people being not able to earn enough money to live.

Example: say Bill is looking for a job. He wants $5.25 an hour. But all the employers will only give him $4/hr .

Bill can't do shit about this. If all the employers lower their wages, he has to either take the job, or go unemployed. Add in the fact that there is almost always somebody who will take the job, even at a low price, and suddenly Bill is unemployable. That, or he'll need 2 or 3 jobs just to live.

The difference between this and volunteerism is that in volunteerism, somebody is saying "I don't want a job, I want to do you a favor. If you want to do me a favor in return [like give me a new video card], thats fine." It isn't intended to be a way of making a living.