The Department of Labor did not investigate America Online, so the group of volunteers took it to federal court, suing the company for back pay. Their attorney, Leon Greenberg, told The New York Times at the time: ”AOL is a for-profit business. What community leaders did was very essential to the service in terms of what they were selling to the public. The minimum-wage laws require people get paid a minimum wage. When AOL says, ‘These people were volunteers so we didn’t have to pay them,’ I don’t see it.”
That class-action lawsuit, Hallissey et al v. America Online, Inc., attracted approximately 2,000 community leader volunteers, said Greenberg. America Online’s defense was, as expected, that “volunteers” are not entitled to the same protections as “employees,” and they petitioned the court several times to have the case dismissed. The crux of the case was this definition, and it’s a complicated one.
There are many factors to take into consideration when deciding whether someone is considered an employee, an independent contractor, or a volunteer under the FLSA: factors like the permanence of the relationship between the worker and the employer, the amount and nature of control the employer has over what the worker does and how he or she does it, and who profits from the relationship, and how. What the employer would like to call its workers, and what the workers would like to call themselves, are irrelevant.
In one noteworthy ruling that eventually made its way to the Supreme Court in 1985, a company was ordered to pay minimum wage to its employers even though the employees didn’t want it. Tony and Susan Alamo Foundation v. Secretary of Labor was based on hundreds of members of a church volunteering regular hours in the organization’s many commercial side-businesses. The workers did not expect to receive any money for their work, and, in fact, “vigorously protested the payment of wages” at trial. Nevertheless, the court decided that, because the for-profit sides of the organization were in competition with other businesses, the use of 300 unpaid workers was not only unfair to the workers, but it also gave the Alamo Foundation an unfair advantage over its competitors.
In an interview this week, Greenberg, the attorney representing the volunteers in the AOL litigation, made parallels between that case and the Alamo Foundation case. He said he felt that in both situations, the workers should have been classified as employees, not volunteers, “because of the regimented nature of their activities.” In both cases, even though the workers were offering their time willingly, there was an employer-employee type relationship at play: workers had to complete a training program, had to work for a certain number of hours a week, had to report regularly to their superiors on what they had done, and, if they failed to meet the employers’ requirements, were kicked out of the program. Employees do not have the same control (control over what work they do and how they do it) as volunteers do, under the FLSA’s definitions.
But the AOL litigation, at least, was a tricky case nonetheless. The court denied AOL’s requests for dismissal, but it didn’t move to bring the case to trial, either. Hallissey et al. v. America Online sat in the court for years before AOL finally moved to settle the case in 2009. The payout was reportedly for $15 million, although Greenberg declined to comment on the terms of the settlement (settlement figure noted here, page twenty-five).
So. Could a similar case be brought against the AOL/Huffington Post behemoth, today, by the thousands of unpaid Huffington Post bloggers? It’s hard to say. Professor Ellen Dannin, who teaches labor law at Penn State, said that paid and unpaid writers generally fall under the definition of independent contractor with regard to the FLSA law. Freelance writers are not considered employees, nor are they volunteers, which typically refer to people working for nonprofits, charities or religious organizations.