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.
“The definition of ‘employee’ under the Fair Labor Standards Act, which regulates minimum wages, is very elastic, I mean it speaks to the economic realities of circumstances,” said Greenberg. “I think it’s an interesting issue. Whether it would be an issue that would be particularly viable or likely to succeed with respect to a litigation claim, I just don’t know. It would certainly be intriguing if these people were to organize somehow.”
Another professor who teaches employment law, Michael Selmi of George Washington University Law School, responded by e-mail to a question about whether The Huffington Post would under any circumstances be required to pay its writers: “That will depend on the duties of each writer, whether they are assigned jobs by Huffington as opposed to freelancers who submit stories, and whether there is a continuing relationship.”
The thousands of unpaid bloggers in question, of course, have signed no agreement with the site, and are under no obligation to submit their stories with any regularity. They do not receive assignments. If they have an idea for a post but then decide not to write it, they are not penalized by the site’s editors in any way. This lack of regimentation in that editor/writer relationship would weaken the bloggers’ (hypothetical) case against The Huffington Post.