“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.
That lack of regimentation, in fact, is exactly what many bloggers love about The Huffington Post: it’s a forum for them to express themselves freely, where they can potentially be read by millions, and use that platform to attract attention to their personal blogs or book projects or whatever else they’re working on. Founding editor Roy Sekoff, interviewed by Bloomberg Businessweek for an article about the fact that The Huffington Post’s model is unlikely to change anytime soon, calls it “a symbiotic relationship.” Contributors are willing to write for free in the short term because of the community they feel they are a part of, and the many other long-term benefits they feel they can get for their efforts.
When bloggers no longer feel it’s in their interest—or that it’s disproportionally too much in AOL/HuffPo’s interest—then they’ll quit, which they have every right to do. They’ll either drift off quietly, or, as is also their right, make a big splash. Mayhill Fowler is one such writer, who attracted a lot of attention with her blog post last year, “Why I Left The Huffington Post.” In her short e-mail to Roy Sekoff and Arianna Huffington, which she reprinted, she wrote, “Without pay and some editorial support and a reportorial community for belonging, I find it increasingly hard to find anything worthwhile to say.” Sekoff wrote back to her, wished her the best, and that was that.
After all, she was never under contract. After all, she was just one writer among many. And maybe that’s the point. Every individual writer has his or her own individual motivations for contributing for the site: to promote a book, to link back to a personal blog, to build a brand, to get clips to work towards a writing job. Together, they form a community of like-minded, but diverse, voices. And The Huffington Post is under no legal obligation to give them anything more than that forum. Under current labor law—unless we’re missing something here—The Huffington Post’s business model is perfectly legal. But is it right?
Even though the writers don’t feel that they are being used, that doesn’t mean that they aren’t. The Huffington Post reaps actual direct financial rewards from all this free labor, whereas the bloggers’ rewards are indirect, and primarily emotional. That has always been true, but the contrast is thrown into much sharper relief when we suddenly learn the extent of those financial rewards, to the tune of $315 million.