Is Stack Exchange in violation of NY labor law by using volunteer moderators?

https://meta.stackexchange.com/q/337117/16587

by gortok • 7 years ago

250 143 7 years ago

meta.stackexchange.com

ryanmarsh• 7 years ago

Judging from the comments in SE the answer is, yes.

This would break a lot more services, including a substantial number of Open Source projects and communities (specifically, any that are primarily run by a company rather than a non-profit).

namewasmypw• 7 years ago

Maybe that's a good thing? Companies are ruining the Internet.

jasonlotito6• 7 years ago

No it wouldn't. It's not just the fact that people are doing unpaid work. There are a number of other requirements that have to be met, which SE seems to meet with regards to how it handles moderators. Just being an unpaid moderator doesn't run afoul of the laws.

danShumway5• 7 years ago

I'd really appreciate if you'd be willing to expand on this.

It's not clear to me what the difference is between the moderation happening on StackOverflow and the moderation happening on Wikipedia, other than that Wikipedia is non-profit. But having non-profit designation be the key factor in deciding whether or not someone can volunteer seems like a rule that would have some really negative side-effects.

The 5 points I see online are:

- Degree of Control Exercised

- Profit, Loss, and Investment

- Skill and Independent Initiative

- Integral Part of Business

Are there others that I'm missing?

csomar• 7 years ago

If the Open Source project is free, then there are no profits generated from it. Doesn't seem to be applicable under this law.

danShumway5• 7 years ago

You wouldn't say that Redhat is generating money from Linux?

CM30• 7 years ago

Not just services. It'd also theoretically break (if taken to an extreme):

Wikis, since most wikis don't pay their admins/bureaucrats. Like most of the ones on Wikia, Gamepedia, the NIWA, etc.

Old school fan sites, which often went with volunteer staff teams

Quite a few media/fan run/gaming news sites, which also often have volunteer writers.

etc

dx0342• 7 years ago

It wouldn't kill Wikis, it would just force them to operate as non-profits. Maybe not such a bad change. If they want to be a for-profit, they can still have volunteer writers but no volunteer admins.

ShinTakuya• 7 years ago

Good. I've had enough of these companies tricking people into working for them for free.

sokoloff• 7 years ago

I read through the comments specifically to see how long it would be until someone recommended the question be closed as off topic.

Was not disappointed.

_Codemonkeyism• 7 years ago

Classic SO.

partingshots• 7 years ago

Does this hold true for sites like Quora as well?

TheHypnotist• 7 years ago

How about Reddit mods?

neom3• 7 years ago

These companies may also need to be head quartered in NY like Stack Exchange is.

docdeek2• 7 years ago

If I start a subreddit, I become a moderator. Reddit didn’t ask me to start the sub so I’m not sure it would be the same thing. Unless they are actively recruiting mods for larger subreddits, perhaps.

thefrozenone• 7 years ago

The process is to employ/pay human moderators, similar to Facebook [1]. They also pay for some content creation [2].

[1] https://help.quora.com/hc/en-us/articles/360001069906-How-do...

[2] https://help.quora.com/hc/en-us/articles/360000673263-Partne...

todd3834• 7 years ago

Wouldn’t social networks fall under a similar category? I get that they are different but there is a lot of overlap.

If they are in violation then I think the law needs to be updated.

thrav• 7 years ago

Reddit certainly would. Moderating a top subreddit is definitely as much work as most part time jobs, and essential to that site actually being good.

vonmoltke2• 7 years ago

Subreddit moderators are controlled by those who control the subreddit, not by Reddit itself (with, IIRC, a few exception where the moderators are Reddit employees).

kube-system• 7 years ago

It doesn't matter how much work it is or whether it is important. What matters is whether or not the circumstances of the working arrangement qualify it legally as an employment.

AFAIK, Reddit doesn't organizationally require their community mods to do anything at all.

alistairSH3• 7 years ago

Facebook already pays its moderators.

jasonlotito6• 7 years ago

Wouldn’t social networks fall under a similar category?

Most social networks I'm aware of pay moderators.

mrunkel• 7 years ago

By this logic, shouldn't the people posting questions also be considered illegal volunteers?

nhumrich• 7 years ago

I dont think so. The question askers and answers arent expected to do anything, and you could argue they are doing it out of their own self interest, which is the whole point of the site. In other words, they are the customers. Moderators on the other hand are held to certain standards, have to maintain a certain amount of moderations, and are actually doing it to better SO as a whole.

harshreality• 7 years ago

Moderators are doing it out of their own self interest, too. They're not doing it for money, so if they aren't enjoying it they can quit with zero repercussions, right?

ETA: So because of the psychic toll that it may or may not take on volunteer moderators, moderating for free for a for-profit company is illegal?

I guess I can understand this: It's half protecting people from getting into an unhealthy psychological trap where they're on a hamster wheel for a for-profit company but their reward is continued volunteer status rather than income. And it's half forcing for-profit companies to redistribute wealth by mandating that essentially no labor shall be free.

Unfortunately that hurts people who, with their eyes open from the beginning, want to volunteer and who don't care that the organization is making money from it. It also hurts companies by shrinking their labor pools for tasks that could potentially be shifted to volunteers.

fortran77• 7 years ago

Maybe they're in violation of some of those new "anti-bullying" laws. Ever try asking (or answering) a question there?

Shivetya• 7 years ago

moderators, why not contributors too? can any for profit be associated with open source or similar without falling under one of these laws?

yabadabadoes• 7 years ago

It has a lot to do with how much power the "employer" has (one of the 5 factors discussed in the answers).. its pretty normal that someone can employ you today to contribute to opensource and choose your direction, or not employ you and hope your direction and theirs doesn't fork..

(When they try to control all the PMs, etc but accept public work when it happens to fit, then I do think they are in the grey area.)

edit-terms&redundancy..

neom3• 7 years ago

I would have thought for this to be true, both the company and volunteer would need to be in NY state. IIRC I don't need to extend my NY labour obligations to my Californian employees (however as a NY company I would still be required to follow Californian labour laws with regards to employees there).

pmlnr• 7 years ago

except for a short term recreational or amusement event run by that organization.

Looking at the recent developments at stack exchange, it fits "Amusement event".

mreome4• 7 years ago

This raises some serious questions for anywhere with user/volunteer based content/moderation. Sites like Reddit operate on a model very similar to Stack Exchange, and any user-moderated forum that runs ads to pay for hosting/maintenance costs would seem to have the same issues.

It also raises questions about the status of Instagram influencers, you-tube personalities, or anyone on a platform that derives it's value from those it hosts but does not treat/pay them as employees.

Even games with user-generated/managed content. If a game developer is paid for generating content, why would the create of such user-generated content not qualify?

Virtually anywhere someone is doing something that they arguably could be paid for would seem subject to a law like this.

semiotagonal• 7 years ago

I'm not a lawyer, but there is a common-sense difference between Stack Exchange and Reddit.

On Reddit, it's just a community having a discussion. The participants, even the moderators, are mainly involved in guiding a discussion, and Reddit just facilitates that.

On Stack Overflow, the moderators really are working directly on improving the site's content. They're practically unpaid editors.

klmr4• 7 years ago

On Stack Overflow, the moderators really are working directly on improving the site's content. They're practically unpaid editors.

So do non-moderators. In fact, there are some users who do more work towards improving the site’s content (via editing, handling suggestions, etc.) than some moderators. In fact, “trusted users” have access to many of the same moderation tools as moderators, and editing content is actively encouraged (via functionality, badges …) for all users.

mreome4• 7 years ago

In many of the subreddits the mods are directly improving the site's contents through extensive manual filtering and moderation. Some subreddit mods also manually manage "flair" including various forms of "verification." There are may subreddits that would be effectively unusable due to spam and irrelevant content without such moderation. Some social media sites pay people to conduct this kind of filtering and curation, so it doesn't feel like a stretch to me to say Reddit mods might qualify here.

I'm not saying that there isn't a "common-sense" counter-argument to some of the cases I noted, but "common-sense" is a defense to be raised in court, the case is brought based on if the law could apply. In my mind that's troubling as it weaponizes the law in a way it could easily be abused.

adrianmonk2• 7 years ago

Why just moderating? In a sense, it's every action you do that adds value to the site by drawing people in or improving their experience.

When users write a comment (such as what I'm writing right now on Hacker News), they are acting as writers who generate text for people to read. When they submit a link, they are locating content for people to read. When they upvote or downvote, they are acting somewhat like editors by helping to curate content.

In traditional media (a newspaper, for example), these functions would typically be performed by paid staff. In social media, it doesn't work that way.

But then the whole point of social media is to interact with other people. And interaction is two-way. You could argue that the value users receive from interacting is the reason they come to the site. And consuming content is part of that value, but you could also argue that being heard is part of the value you receive as a user.

When I do any of any of these things, am I doing labor by giving up my valuable time in service of the business? Or am I receiving value because the site allows me to be heard? Maybe the answer is both. Probably we should look at every aspect of the transaction.

Continuing the newspaper comparison, look at letters to the editor. Does anyone argue that people who write letters to the editor are unpaid volunteers? Not that I know of, because everyone understands that people write those letters because they want their opinion to be heard. So even in traditional media there's a little precedent for this.

pimterry2• 7 years ago

It's not about unpaid work though, it's employee-like unpaid work. https://meta.stackexchange.com/a/337123/345240 has some interesting discussion of this.

In practice, that means that normal commenters or people using social media aren't relevant for two reasons:

* There's minimal control over their actions from the 'employer'. There's some basic rules on what content is not allowed, but nobody says "you must write a question about Java every day". You can use the tools available however you'd like, and you have freedom over when and how you use SO/social media - there's no obligation to post with any specific frequency. That's not true for moderators: they have specific tasks they must complete, and they must continue to be active, or they lose their moderation status.

* There's no permanent relationship: you can use social media/SO once, leave, and return any time you like, and leave again. This is not true for moderators.

adrianmonk2• 7 years ago

Great point. It makes sense that it wouldn't just be the value you might get or give but the terms under which you do it. That's a logical distinction to make.

zaroth• 7 years ago

My karma score is pretty big evidence against the theory that there’s no permanent relationship. Users can become highly invested in particular communities!

I also abide by fairly strict code of conduct / moderation policies when writing on certain platforms. If I don’t abide by the community rules my posts can be flagged or even my account banned.

Paid writing is absolutely a trade, so I can’t see how any policy that sweeps up moderation can’t also equally apply to comment writing.

The government has a nasty habit of taking a concept like “work” or “income” and then applying it to literally everything so that they can regulate and tax literally everything. To the point where the IRS had to define specific exceptions for family chores lest they be deemed as barter and requiring the payment of payroll taxes.

Luckily in this case we have the 1st Amendment which should provide a pretty strong defense against any attempt to limit basic community social activities and the necessity of moderating those interactions.

Despite the fact that [I would hope] my comments on HN accrue significant value to the HN site, and that those comments are indeed work of the kind that some people even get paid for, my 1st amendment right to post here should override the interest of the State in establishing minimum wage requirements. Would love to hear a constitutional law scholar’s thoughts on this!

klmr4• 7 years ago

That's not true for moderators: they have specific tasks they must complete, and they must continue to be active, or they lose their moderation status.

That’s not correct: especially on the small sites, it’s acceptable for moderators to be inactive for long periods of time. It’s not great, but it’s understood that moderators have lives, and that they’re … not employees. I can state this confidently because I used to be a moderator on smaller sites, and I finally resigned from one (without having been in any way encouraged to) after almost a year of inactivity.

deevolution• 7 years ago

checkout the steemit platform for an example of an online community where all forms of contributing, as long as people believe it added value, can be rewarded. The content is mostly crypto related, but I think its an interesting alternative to our current reputation based models because it means you can transfer the value you contributed to that site into real money whereas reputation is non transferable accross different platoforms.

Spooky234• 7 years ago

Moderating is very different from a letter to the editor. A moderator is making editorial decisions on behalf of the company using company guidelines and standards. They are held to a set of standards as well, and released from their service if they violate them.

Contributions are more like letters to the editor. The content has value to the company, but the company doesn’t exert control over either the asking or answering of questions.

The whole point of Stackoverflow, which was pretty clear if you listened to the podcasts that described some of the early planning aspects of the community was that it would be self-governing. Decisions were later made to implement a Wikipedia-style moderation system, which is problematic at a for-profit company.

DoctorNick3• 7 years ago

The fact remains that moderating forums is labor, and stack exchange receives a lot of value from that labor that the mods themselves don't see a dime of.

davidgh• 7 years ago

Yes, but ...arrgh... they are doing this of their own free will and choice, perhaps because they enjoy it, they increase their social interactions, increase their skills... etc. It seems contrary to the concept of freedom if private parties cannot engage in such a relationship, if each and both so choose.

hombre_fatal3• 7 years ago

I run a forum and there's no shortage of people who would happily volunteer for a mod role.

You have it wrong though: they get plenty of compensation through reputation, clout, and a feeling of power over their peers and being heard and helping out in a community that they love (or some combo of these). That's why they do it. Why is that not a fair trade without money exchanging hands?

Growing up, I used to mow an aging neighbor's lawn because he was basically couch-ridden. It made me feel good to help someone else out. Was I being exploited and should I have demanded payment, or was that just a fair trade that I volunteered for and could quit at any time?

Or look no further than HN. Participating on this forum writing content and enriching YC's coffers is "labor". And our compensation is procrastination and venting and feeling some satisfaction for scrawling our opinions online. If we didn't like that deal, we wouldn't be here.

mantap• 7 years ago

Should we require the elderly to pay their adult children minimum wage for looking after them? Because that is far more like work than being a moderator on a website.

sah2ed• 7 years ago

So even in traditional media there's a little precedent for this.

There may not be a precedent in traditional media but boy there is an Internet entity that well known to us already: Wikipedia.

Many forget that Wikipedia (where anyone can contribute) was part inspiration for SE as was Experts-Exchange, and Wikipedia is indeed organized as a non-profit via WikiMedia.

This meta post might be the one that forces investors to re-organize SE as the social good that it is rather than as an asset that needs to be exploited.

celticmusic• 7 years ago

that's obfuscating the real point. Moderators are doing curation on behalf of the company, not simply using a platform to interact with other people.

All reasonable people understand the difference.

fweespeech2• 7 years ago

Reason #4000 to not have a physical presence in the state of New York.

I'm sorry but this law is kinda ridiculous.

Spooky234• 7 years ago

What state allows for-profit organizations to solicit unpaid volunteer labor from people outside of prison?

It’s a pretty obvious violation of Federal law and multiple state laws.

thekyle• 7 years ago

What are unpaid internships if not unpaid volunteer labor?

vonmoltke2• 7 years ago

What state allows for-profit organizations to solicit unpaid volunteer labor from people outside of prison?

I'm not aware of a state that allows that for people inside prison, either. Well, not technically. They get paid, it's just a lot less than someone on the outside would make.

strictnein2• 7 years ago

Why should a state be able to stop me from doing whatever I want with my own time? It's my decision to do things with a group of others, not the government's.

fweespeech2• 7 years ago

Prison isn't volunteer labor. Its compulsory. I.e. Slavery and the exception built into the constitution.

pastor_elm• 7 years ago

Don't worry. New York only selectively enforces these types of things.

Tomasz_Papka• 7 years ago

Is this being inspired by a bunch of former moderators?

jsonne• 7 years ago

Seems like there's also a good case for Reddit moderators to not be volunteers as well. To be honest I've always thought the community moderated model has seemed like somewhat of a loophole that was eventually going to be closed. It's having your cake and eating it too. IMHO you can either have UGI with a professional moderator team OR you can have professionally made content with no moderator team.

criddell2• 7 years ago

Maybe Reddit should be turned into a shopping mall type of business where subs can be run however the sub mods want, but they have to pay a monthly rent to Reddit. I wonder if that would make things better or worse there?

Endy2• 7 years ago

It would kill 99.9% of the subs there and utterly change the culture.

mertd• 7 years ago

r/NBA brought to you by Huawei.

Macha• 7 years ago

I think Reddit moderators are less restricted/directed by Reddit so they fall closer on the spectrum to the guy running a debate club/whatever at the local community centre. I don't think anyone would argue that they're an employee of the community centre, even if the community centre prohibited alcohol at their events.

pflats• 7 years ago

I like your point, but I go back and forth on this. Rules are different for non-profits and volunteers, so let's make sure we're focusing on a for-profit function hall, not a local community center.

As far as I can tell, Reddit exerts minimal control over its moderators, and seems to treat them like normal users who happened to get more buttons to press (perhaps by design for this very issue). That seems to me like they're not unpaid employees.

At the same time, I'm reasonably certain that if the moderators of, say the "aww" subreddit, decided as a whole that they were only going to use their moderator powers 5 times a day each, Reddit would step in.

And that brings me back around the other way. Reddit relies on its moderators, for sure.

But is the lack of control they exert over mods the true status quo? Or is the lack of control just because it's convenient?

If I'm running debate club at the function hall and it gets wildly popular, the biggest scene around. I'm sure the owners would be thrilled. If I then decide that anyone who says "um" more once is no longer welcome, I imagine the popularity would wane. The hall might be really cranky about lost concessions. They might try to find someone else to run their own debate club and counter-program mine. They might even cancel my lease and get a new debate club going in the same room. But they're not going to step in and replace me as the moderator of my own debate club.

So... I don't know!

lightedman• 7 years ago

"I think Reddit moderators are less restricted/directed by Reddit"

Several former mods have gone public with how the Admins basically told them "Do this or we remove your community and ban you."

PeterisP• 7 years ago

Nobody would argue that they're an employee of the community centre, but it seems obvious that they're a volunteer doing volunteer work at the community centre - and NY law says that either the community centre is a non-profit, or it can't have volunteers; if that's a for-profit organization then that guy running a debate club must be paid minimum wage.

unlinked_dll• 7 years ago

Yea I mod a sub with a few thousand subs.

I definitely shouldn't be subject to labor laws for that work. It's organizing stuff around a hobby, not creating concrete value for or at the discretion of Reddit the business.

Some of the bigger subs though should have full time staff on the mod teams however.

jmkni• 7 years ago

Tricky one, technically could you can setup your own SubReddit, start moderating it and call yourself an employee?

bobloblaw45• 7 years ago

I just became aware of this whole "powermod" phenomena where individual mods oversee many subs. Like 30+. I just recently learned about them but I guess they're sort of admins favorites since they essentially do their bidding while still looking like "part of the community". Totally feels like they're trying to have their cake and eat it too.

MrStonedOne3• 7 years ago

Not really.

Reddit doesn't claim ownership of the subreddits.

A subreddit is something 1 user creates, getting ownership of that subreddit, and then that 1 user is free to appoint other mods.

This is more akin to a facebook group.

empath75• 7 years ago

They take subreddits away from people from time to time.

hirako2000• 7 years ago

It is just one of the many aberrations that we lived with without noticing.

Our digital era, that has only started will pin point those aberrations in people's heads. Until enough of us branch off the regulations and national business laws entirely.

It's just a matter of time imo.

hoseja• 7 years ago

So, this whole time they've been doing it for free AND illegally? Hilarious.

MoronInAHurry2• 7 years ago

A bunch of non-lawyers taking a tiny chunk of law in isolation and speculating about whether something "seems illegal" based on it is really, really useless.

And this HN thread is just going to be even more of that.

wolfgke2• 7 years ago

A bunch of non-lawyers taking a tiny chunk of law in isolation and speculating about whether something "seems illegal" based on it is really, really useless.

To me, this is rather a sign that the law is far too complicated and should be radically simplified.

jacobush• 7 years ago

Common Law is rarely simplified.

MoronInAHurry2• 7 years ago

All laws start out as simple concepts. Then they need to be applied to reality, where very few situations are simple.

tzs• 7 years ago

Humans and human societies are the most complex systems we know of, and are full of people who will exploit any edge cases or loopholes.

I think that this greatly limits how much simplification you can have in a legal system and still have it be effective.

fragmede2• 7 years ago

There is always a well-known solution to fix every human problems — neat, plausible, and wrong.

C1sc0cat2• 7 years ago

And ignores the fact that plenty of Lay activists volunteer time without problem.

maxerickson• 7 years ago

The funniest thing is there is implicit discussion of a remedy other than New York users being banned from activities that qualify as work.

ashelmire• 7 years ago

IANAL, but it is generally illegal to volunteer for a for-profit organization federally. See the Fair Labor Standards Act and Dept of Labor site [1].

The most relevant recent test I can find resulted in a settlement, when AOL paid people who contributed articles without payment[2]. There's been some conflicting decisions in other related cases and many are still in progress.

1.https://webapps.dol.gov/elaws/whd/flsa/docs/volunteers.asp 2. https://archives.cjr.org/the_news_frontier/aol_settled_with_...

MrStonedOne3• 7 years ago

If laymen can not read, parse, and understand law, then laymen can not follow the law, and laymen can not have due process.

Or in other words, lawyers are a value add, not a necessity.

pc86• 7 years ago

That's not what due process is.

balls187• 7 years ago

A bunch of non-lawyers taking a tiny chunk of law in isolation and speculating about whether something "seems illegal"

Motions, Petions, and Trial are essentially the same, except typically also include Lawyers in addition to non-lawyers (pro-se), and rather than speculation, it's called Argument.

datashow• 7 years ago

What if a moderator is a H1B or F1 holder, or any other foreign nationals who are not authorized to work for SE?

Will they have to quit being a moderator immediately? Accepting payment from SE would definitely be violating immigration laws.

shkkmo3• 7 years ago

I am not whole opposed to the idea that companies that extract value from content created by their users should be forced to operate as non-profits that operate for the public good.

The biggest drawback I see is that this could lead to large scale lobbying to greatly reduce the limitations placed on sich non-profits.

TulliusCicero• 7 years ago

The biggest drawback is that sites like Reddit become infeasible or much less useful.

I find it hard to get outraged that Reddit profits from user contributions and discussions given that the useful bits to me and others are provided at no cost.

SnarkAsh2• 7 years ago

While we're discussing Stack Overflow's legal situation:

- Users have raised $9000 to defend a volunteer moderator from defamation by Stack Overflow employees: https://www.gofundme.com/f/stop-stack-overflow-from-defaming...

- Stack Overflow illegally changed the content license without permission from authors (Creative Commons allows such license changes for adaptations but not collections such as Stack Exchange) and refuse to clarify their legal justification (do they feel they have the right to change to any license they choose?): https://meta.stackexchange.com/questions/333089/stack-exchan...

- Their general counsel appears to have left the company a little before all of this happened: https://chat.meta.stackexchange.com/transcript/message/80154...

Animats• 7 years ago

AOL got hit by that years ago.[1]

[1] https://priceonomics.com/the-aol-chat-room-monitor-revolt/

bmm6o• 7 years ago

Didn't AOL go through this exact same thing back in the day? I'm pretty sure I recall them having volunteer moderators was declared illegal.

mthmohan• 7 years ago

I'm curious if this same argument could be made for reviewers of scientific journals. Don't they perform the same / similar functions?

KorematsuFred• 7 years ago

Ban Stack Exchange in NY state. Problem solved.

On serious note (and to avoid pitchfork holding HN mods) : May be it violates NY labour law under some interpretation, but that is an indication that the law is not well thought through and kills innovation. When people complain that a labour law will kill innovation most people tend to dismiss those suggestions. Well here it is now.

SnarkAsh2• 7 years ago

True. Worth noting that this is coming up because the volunteers are being mistreated and people were looking for laws that could protect them, and may have found more than they were looking for.

manicdee• 7 years ago

They can’t be in violation of labour law if they fire all their moderators for refusing to comply with the mandatory pronouns CoC!

Is Stack Exchange in violation of NY labor law by using volunteer moderators?

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