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Is Stack Exchange in violation of New York labor law, in using volunteer moderators?

I found a New York State Department of Labor - Division of Labor Standards Frequently Asked Questions document, which states:

Q: Can for-profit and non-profitmaking institutions have unpaid volunteers?

A: By definition, the term volunteer means a person who works for a non-profitmaking institution under no contract of hire…and with no promise of compensation, other than reimbursement for expenses as part of the conditions of work. A person may do volunteer work in a non-profit organization, if that organization is set up and operates strictly for charitable, educational or religious purposes. For-profit organizations may not use unpaid volunteers (who meet certain criteria) except for a short term recreational or amusement event run by that organization.

Am I drawing the correct conclusion, that actually a for-profit organization, such as Stack Exchange, is not permitted, under New York State labor law, to use volunteer labor for moderation tasks?


Related: https://meta.stackexchange.com/a/338542/287826

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    Could there be some other term New York uses to describe what everyday language would refer to as an "unpaid volunteer"? – jhpratt GOFUNDME RELICENSING Oct 30 at 4:49
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    Wow, the post that brings down a network. It's going to be interesting what comes out of this. – Nobody Oct 30 at 5:28
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    Why is this restricted to moderators in particular? Every contributor here is a volunteer. Also, the (who meet certain criteria) very much may apply here. Are you able to find any details as to what the criteria is? – Robert Oct 30 at 5:42
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    And what about the volunteer work of answering questions and enrich the knowledge database, then? ... Oh, this part is paid. In reputation points. – dim Oct 30 at 5:43
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    if this is true, then it affects not only the moderators, but all the users who've took any action (ask/answer/moderation actions) – Vishwa Oct 30 at 6:09
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    @dim I don't think imaginary internet points would count as paid mate. if that's true, your teacher paid you when you did great work by giving you stars – Vishwa Oct 30 at 6:10
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    What makes you believe Stack Exchange Inc is actually registered in NY? Most likely its registered in Delaware like most corporations. – JonathanReez Supports Monica Oct 30 at 7:24
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    @JonathanReezSupportsMonica SE is officially headquartered in New York (cf. /legal). "Both you and Stack Overflow hereby irrevocably agree to the sole and exclusive personal jurisdiction of the Courts of the State of New York with respect to any action, suit, or proceeding brought by it or against it by the other party in connection with the Network or Services." – S.D. Oct 30 at 7:58
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    @JonathanReezSupportsMonica you're right though, it's incorporated in Delaware. Says so in the terms of service. – Pekka supports GoFundMonica Oct 30 at 8:10
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    I'm voting to re-open because until meta.stackexchange.com stops being an avenue to ask the company questions; this question is on-topic given the historical precedent of meta.SE. When that changes, then I'll change how I vote. – George Stocker Oct 30 at 12:04
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    While this is interesting, notice that SE has shown a complete disregard for the law as it relates to its operations Random related post or the rights of contributors. – James Jenkins Oct 30 at 12:16
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    I guess contributing to any social network for any purpose could be considered under the same law. That includes Facebook, Twitter, Reddit, etc. – Mark Entingh Oct 30 at 14:51
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    @JonathanReezSupportsMonica I dunno man, it's not really that absurd. I completely agree that it would be a bad idea and somehow SE is in the clear, but OP isn't suggesting this SHOULD happen. OP is merely asking if they could run afoul of this, and while I don't necessarily agree with OP's interpretation, they do present enough of case that makes you stop and think "hmmm, maybe they COULD run afoul of these laws". It's a fair enough question to ask. – patricksweeney Oct 30 at 19:45

15 Answers 15

135

The answer would appear to be yes, it's in violation, according to the logic the state has published. I found a five-page 2009 guidance letter about volunteers and interns, which shows how individual situations should be analyzed, in some detail.

The specific situation that the guidance letter focused on is an assisted living facility, where

The purported volunteers perform a number of activities including, by way of example, leading religious services, leading an Alzheimer's support group, providing musical entertainment, taking residents on walks, tending to caged birds and running bingo games.

After a careful analysis, counsel for the New York State Department of Labor concludes:

The employer's failure to pay such volunteers is in violation of the New York State Labor Law. The Legislature limited the use of volunteers to entities "organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual."

I've been thinking about this. On the one hand, I personally see SE as operating for educational purposes. But on the other hand, it's not exclusively educational. The net earnings do inure to the benefit of private shareholders, apparently.

I'm thinking the place to ask about this might be the New York Regional Solicitor's Office.


Update: I've found something that points in the opposite direction, please see my alternative answer.

  • 14
    ...and here we go down yet another legal track. Every moderator network-wide now has the legal right to back-pay for all actions they've ever taken. – jhpratt GOFUNDME RELICENSING Oct 30 at 4:57
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    @jhpratt - Well, that's not where I was going with this. Background: I wanted to understand what rights the volunteer moderators have, withing the body of labor law in the US, and in NY, specifically. At first I thought maybe they (the volunteer moderators) were kind of like unpaid interns. That idea got shot down. I kept looking, and confirmed that indeed, they are not unpaid interns in any sense of the term. They are volunteers. And I found that actually, NY doesn't allow this kind of arrangement. My goal isn't to show that moderators should be remunerated, but that they should... – aparente001 Oct 30 at 5:00
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    ... be protected in the same way employees are protected. I don't know if moderators living in other states would get the same protections, because the company is in New York State. I'm not strong enough in knowledge of the law to be sure about that. – aparente001 Oct 30 at 5:02
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    If they're considered an employee, and it seems they are, then they would have to be paid, including back pay. The moderator's location would be irrelevant, as SE is based in NYC. – jhpratt GOFUNDME RELICENSING Oct 30 at 5:02
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    @jhpratt - Well, there's no point trying to push the company into bankruptcy. But if it can be established that moderators are protected by NY labor law, then moderators can unionize if they so desire. // I suppose the solution for StackExchange would be to make a non-profit entity for the network of public stacks. If they can finagle that, then they could have all the unpaid volunteers they want. – aparente001 Oct 30 at 5:04
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    You can't have a "Yes" without the NY Department of Labor doing an investigation and determining that, and there are exceptions as well as other criteria the NY DOL uses to determine volunteer vs unpaid ewployee. – Web Head Oct 30 at 5:04
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    @rockwalrus-stopharmingMonica - I'd like to see a resolution that puts more agency into the hands of the volunteer moderators. Moderating can come from a spirit of altruism. But as rewarding as altruism is, it's hard to balance that with the frustration, anger, disappointment, etc., that come with arbitrary, autocratic leadership decisions. – aparente001 Oct 30 at 5:10
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    The more important question to ask here is whether a moderator actually qualifies as a "volunteer" under any laws. I doubt it does, even though we tend to attach the word volunteer to what they do. If it did, way larger companies than us would have run into problems by now, e.g. Steam which has the same concept of "volunteer moderators" on their forums. – animuson Oct 30 at 5:35
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    @animuson I don't think the typical concept of a volunteer moderator applies, because those forums or platforms are not necessary to the operations of the company. The premise of SE is that quality curation is key to its success. SE's moderators are described as an essential part of that curation, to the point that the software's most common and basic feedback systems require moderators. A lack of moderators would necessitate SE employees doing the work instead, which I think is a critical distinction for a DOL complaint as it implies moderators do displace paid work. – Web Head Oct 30 at 5:53
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    @WebHead - Well put. Thank you. – aparente001 Oct 30 at 5:56
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    @Nobody - Well, clearly, no one was volunteering as a moderator as a way of earning money. I don't see the money as the key here. I think it's in the fair labor practices aspects. That's where our focus needs to be, I think. Otherwise it's difficult for moderators to get job satisfaction -- and then it's just drudgery, for no reward, either monetary OR altruistic. – aparente001 Oct 30 at 6:37
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    @aparente001 if they are breaking the law - they shouldn't be breaking the law and it needs to be fixed. It's that simple. You posted the Q&A with convincing rhetoric. – Nobody Oct 30 at 6:55
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    I'll accept my payment in reputation points, thanks. – Pogrindis Oct 30 at 13:16
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    @WebHead Would it though? We close sites that don't attract interest in moderation, not moderate them ourselves. At the point none of our sites have anyone interested in moderating, our model has probably failed. Think of it this way: plenty of places also refer to regular, non-diamond users as moderators also. Through the review queues, their close privileges, etc, everyone can technically volunteer their time to moderate. Do they all need paid per review too? – animuson Oct 30 at 13:54
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    @animuson - on the other hand, if all of the Stack Overflow moderators stopped their activity, you would either face a situation where staff would have to moderate the site or the site would face a drastic drop in value. – Mithical Oct 30 at 18:16
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There is a strong case to be made that the answer is yes.

Five Factors

New York law uses five factors to determine if someone is an employee:

  1. the degree of control exercised by the employer over the workers
  2. the workers' opportunity for profit or loss and their investment in the business
  3. the degree of skill and independent initiative required to perform the work
  4. the permanence or duration of the working relationship
  5. the extent to which the work is an integral part of the employer's business.

The objective is to determine "whether, as a matter of economic reality, the workers depend upon someone else's business for the opportunity to render service or are in business for themselves."1 Not all factors have to be satisfied in order for the worker to be considered an employee.

Degree of Control Exercised

SE has numerous policies moderators are expected to follow, and SE can and has removed moderators that do not follow these policies. Inactive moderators are demoted.

Profit, Loss, and Investment

Moderators are not paid, but SE profits from their work. Investments made by moderators in order to moderate are de minimis.

Skill and Independent Initiative

Moderation is a skill, but moderators are limited to specific sites and their work is directed via queues.

Permanence of Relationship

Moderatorship is for indefinite duration, sometimes described as "for life".

Integral Part of Business

SE depends on moderators for answer quality.

Applicability of Minimum Wage

LAB § 652 applies to "any individual employed or permitted to work by an employer in any occupation"2, where occupation is defined as "an industry, trade, business or class of work in which employees are gainfully employed." Since paid moderators exist, moderation is an occupation for the purposes of the minimum wage.


1: Brock v. Superior Care, Inc., 840 F.2d at 1059.
2: With millions of inapplicable exceptions. Note that a nonprofit educational organization is one of those exceptions, but SE is not nonprofit.

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    I looked at the Brock v. Superior Care case you cited. It seems to be based on federal law, so I don't think it's limited to NY. – aparente001 Oct 30 at 6:19
  • Are you interested in taking action meta.stackexchange.com/questions/337122/…? – Nobody Oct 30 at 6:31
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    @aparente001: The minimum wage part is based on New York specific law. But it's probably true that they are in violation of other, Federal laws. – rockwalrus-stop harming Monica Oct 30 at 6:41
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    I think you're seriously over-estimating the degree of control (among other things, a moderator can show up for work, or not, on a whim), and mis-applying the profit/loss/investment test. – Mark Oct 30 at 7:43
  • @Mark: Inactive moderators are demoted. – rockwalrus-stop harming Monica Oct 30 at 7:48
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    Yes. After six months of consistently not showing up. I'm not aware of any job that gives you that sort of flexibility in working hours. – Mark Oct 30 at 7:53
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    As far as "skill/initiative" and "integral part of business" the same could be said of any user with access to the review queues. – Matt Gutting Oct 30 at 10:17
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    By this logic, every single user on the network is also an employee. Users can be suspended (control), SE profits from their work (profit), asking and answering are skills (skill), users are for ever (permanence), SE depends on users for content (integral). I cannot believe there's a valid case to be made that everyone who has ever contributed to any forum or Q&A site on the internet (or Twitter, or FaceBook, or provided content indexed by Google etc.) that was owned by a for-profit entity is owed money. – terdon - stop harming Monica Oct 30 at 10:37
  • @terdon i can, however, I cannot see that every person who posted to SO becomes a full-time employee, I can see that we should be owed some money from the site that got rich off our efforts. it may be a piddling tiny almost-impercetible amount (though my daily fees for work are eyewateringly high ;) ) because the hours worked are so low, and thus not worth collecting but... in principle should still apply. FB, twitter - the posts there are hardly "skilled" or required, FB could argue it provides news/ads and has a 'forum' added on. – gbjbaanb Oct 30 at 11:22
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    @gbjbaanb they require as much skill as some of the questions and answers here. If you wanted money for participating, you should have thought of that when you started. Suddenly asking for money now, even assuming you had a claim (which I very much doubt) is as morally dubious as SE's actions have been. – terdon - stop harming Monica Oct 30 at 11:34
  • @terdon I don't want money, I'd tell them to donate it somewhere even if it was offered. But that's not the point. and the rights are probably more important given how things have turned out. – gbjbaanb Oct 30 at 11:35
  • @terdon I think it depends on how the money is used. If the primary usage is to improve the platform (pay bills for its internet traffic, server hardware, hiring community managers, etc) then I don't see a problem. – user1306322 Oct 30 at 11:36
  • @Mari-LouA - Is that a hunch, or is it based on things you've read? If it's the latter, would you mind sharing your links and your reasoning? I've been confused about this since the whole thing started. // If you're right, I really do not understand why the company is keeping said individual on, in the same position. By the way, when did said individual begin this position, and who occupied it previous to her appointment? Or was the position recently created? – aparente001 Oct 30 at 19:14
  • @Mari-LouA - I had a hard time coming to the same conclusion as you about how the firing was decided. Your interpretation seems plausible, but I couldn't draw a clear conclusion. But thanks for the link to the podcast. I will say that listening to the excerpt did not change my preliminary impression of SC. (But I will continue trying to keep an open mind.) – aparente001 Oct 30 at 20:34
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IANAL. I don't work here.

I am a moderator, and stuff like this scares me.

Now, I love the enthusiasm here, but pretty much, if mods were counted as volunteers and had to be paid... we probably would be burning off money I'd rather see on development of the network and better formal community resources.

We've had discussions over whether mods should be paid before. We don't really want it. Sure we want a certain level of fair protection, but for most of us, it is far more important that the company pay attention, and expend resources for things like more community management, and development, social, design and code.

SE has a total of about 300 employees. There's about twice as many mods.

Many of those mods probably wouldn't leave their current employment, and hiring all of us puts a certain pressure on us to perform. I just took a break because I needed a break. It was indefinite, and I came back because I felt it was needed.

So, for most part I suspect this would likely simply end up ripping out most of our formal moderation capability. It's simpler for SE to close down a bunch of sites than even pay 500 people across at least a dozen countries, in terms of both paperwork and actual finances, even if it was a minimum wage.

It might also affect a broad swathe of the tech industry.

And honestly? I don't even see how this would make things better for any of us. It would probably kill off the network, not get justice for anyone, and probably bankrupt SE so badly someone would buy it for pennies.

So essentially... hell no, and what are you trying to do?

  • As the OP notes above, "My goal isn't to show that moderators should be remunerated, but that they should be protected in the same way employees are protected", which I think clarifies what the OP is trying to do, and looks very much like what you say in your fourth para. So "hell no" seems a bit off-target, really. – MadHatter supports Monica Nov 2 at 6:32
  • "Am I drawing the correct conclusion, that actually a for-profit organization, such as Stack Exchange, is not permitted, under New York State labor law, to use volunteer labor for moderation tasks?" Seems to kinda mean if we're treated that way, its illegal. And I kinda feel to an extent its a moral duty of care rather than a legal one. – Journeyman Geek Nov 2 at 9:36
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    "bankrupt SE so badly someone would buy it for pennies" - you say it like that's a unquestionably bad thing – DVK Nov 2 at 14:52
  • @JourneymanGeek ah, OK. Would it be fair to summarise that you're both asking for the same thing - a less-abusive relationship between the company and its moderators - but you would prefer to achieve that through moral pressure, while the OP seems to prefer legal pressure? – MadHatter supports Monica Nov 3 at 8:19
  • Fundamentally I think this line of reasoning is kinda flawed. I definitely want a less confrontational relationship between the company and community, and I feel specific actions were incorrect but both sides hurling weapons of legal mutually assured destruction isn't the way to go. And this pretty much is potentially one of those things. I'm not sure OP and my goals align in anything but the broadest ways – Journeyman Geek Nov 3 at 8:26
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    600 moderators at 10 hours a week, at NY Min Wage ($11.10 /hr) would be roughly $800,000 a year. Now, its possible there would be additional benefits, but if all moderators are part time and restricted to X hours a week or less, say 10 the company could avoid most of that. Realistically, that is maybe 4 or 5 (I'm assuming health care and other benefits) quality full stack developers; but if you go by other rules of how much an employee is worth it quickly falls to 1 dev. In terms of guaranteeing good content on a commercial site, its probably worth the money. There are more costs, out of words – Kirk Nov 5 at 22:55
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Hell no!

No, no, no, no, no, no, no, hell no, NO! NO!

I do not work here, I do not want to work here and if I were to be offered money I would run away. I have absolutely no desire and no interest to enter a financial agreement with Stack Exchange. As far as I'm concerned, I answer to the communities that elected me, not to the company that happens to be running the software those communities use.

SE provides a free platform and I use that platform. If mods are going to be considered employees, why stop there? Everyone involved in an SE community, each one of the several million users is here contributing content and/or moderation for free. Are we going to call all of them employees? There's not a huge difference between users with diamonds and users without. We're all here for the questions and answers. Are you going to call all of these millions employees now?

Most importantly, I categorically do not want that kind of relationship with SE. Not only because I wouldn't want to work for a company that has shown itself to be as morally bankrupt as SE (I don't even know if I want to remain a mod here, let alone become an employee!), but more importantly, I don't want this to become a paid activity. I come here to have fun and learn stuff. If I accept money from SE, I also accept I have obligations towards them. I do not want this.

I also find this ethically dubious. I freely chose to come here and spend my time on these sites. SE didn't force me. I found the sites, discovered I enjoyed answering here more than on the forums I used to be active on, and stuck around. After all these years of doing so for free, I now suddenly decide I should have been getting paid? That just feels backhanded. I don't want to be that guy.

This also seems patently absurd. It would mean that every single site on the internet that is hosted by a for profit entity and has a support forum would now have to pay the people who ask or answer questions on their forums. We are not going to the SE offices and volunteering our time there. We just answer or ask question on an online platform. I can't imagine any serious lawyer would consider that "working". Should I now ask for money from chess.com because I spend my time there offering others the opportunity to play against me?

We are volunteers. We chose to be volunteers. Don't make us into employees, please.

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    I think though that this is a productive discussion to have as one of the reasons the lines between the CM team and the moderators should not be blurred. And I don't say that simply because they're asking me to be a role model for their political views. They are starting to try to off-load real work on to the volunteer mods. – ColleenV parted ways Oct 30 at 10:17
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    And pretty much no standing mod really wants this. And if SE was to pay me, I might have to check if that's ok with my current employer and their client. And yeah that's literally means quitting as a mod involuntary cause I don't make a cent from my time here, and I doubt SE can cover my day job rate just for being a mod. – Journeyman Geek Oct 30 at 10:20
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    @JourneymanGeek Actually, most of us would have to register it as a potential conflict of interest I think. – ColleenV parted ways Oct 30 at 10:21
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    I didn't read the question to be about "How to make everyone considered an employee?", but rather "Are the users entitled to any legal protections?" – user1306322 Oct 30 at 10:21
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    The discussion shouldn't be focused on monetary retribution but on SE's responsibilities for taking action without "just cause" against one or more moderators. Especially if a representative then confirms the identity of the "fired" moderator to the press. At this point, SE has to realise what they did to MC was not only morally wrong but also stupid. – Mari-Lou A Oct 30 at 10:22
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    @user1306322 the two go together. The question asks if we are entitled to ask for remuneration. I don't believe we are, but I really don't care: I absolutely do not want to enter any sort of financial agreement with SE whatsoever. I would sue to avoid that, not to ask for it! – terdon - stop harming Monica Oct 30 at 10:23
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    @Mari-LouA then the question shouldn't focus on whether or not it is legal to use unpaid (that's what volunteer means) labor. But also, yes, SE is absolutely within its rights to fire a mod with no explanation. That's explicitly stated in the moderator agreement we all had to accept. Their right to arbitrarily dismiss a mod was never in question, the issue is that they should have had the decency and sense to handle it better and privately. But nobody argues they don't have the right to demod anyone whenever. – terdon - stop harming Monica Oct 30 at 10:26
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    But the contract doesn't mention anything about SE's responsibilities to not malign the good name and reputation of its volunteers. SE CANNOT then post replies which accuse a moderator of violating repeatedly the CoC. This is a serious accusation, an appointed volunteer should be given some guarantee that their name and reputation will not be harmed by the company. If the reasons for "firing" for a mod had been kept secret but MC revealed them, there would be no case. But someone at SE made a stupid error of judgement, and we are still here after 31 days still discussing it. – Mari-Lou A Oct 30 at 10:35
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    @Mari-LouA you're preaching to the choir. All I said is that they have every right to dismiss a mod whenever they like. We agreed to that. We agreed that they can remove our diamonds whenever they feel like it. I am not about to defend the way SE handled this, I am just saying that the demodding bit is within their rights. That doesn't cover any of their royal screw ups or their unethical actions, the publicity, the stonewalling etc., etc. – terdon - stop harming Monica Oct 30 at 10:40
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    Fair enough, the OP could broaden the scope more: Does a company have a responsibility to protect the rights of their volunteers? I've had time to reread the OP more carefully and there's no mention about the rights of volunteers. – Mari-Lou A Oct 30 at 10:45
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    I don't think this is dying down soon but it's better it is a question than lost in the comments – Journeyman Geek Oct 30 at 11:14
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    @terdon to be fair, whether you want this or not is... a different matter entirely. Most companies do end up setting up a non-profit to do this kind of stuff and "hire" volunteers, while the main company deals with the financials and funds the non-profit. It's not unheard of or a weird company structure; the weird part is SE not doing it. – Sébastien Renauld Oct 30 at 11:57
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    "I do not work here": your opinion about that might be irrelevant to whether the law considers what you do here to be work that requires compensation. – Raedwald Oct 30 at 13:22
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    @Raedwald maybe so. But I will stop participating before accepting money and converting my relationship with SE into a monetary one. People seem to be forgetting that if we accept that this is somehow work and deserving of compensation, if we have "worker's rights" then we also have "worker's obligations" and I don't want to make SE the boss of me. – terdon - stop harming Monica Oct 30 at 13:37
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    This does not answer the question, nor the intention as stated by @aparente001 in the comments [0]. "It would mean that every single site on the internet" No just the sites subject to NY law. [0] meta.stackexchange.com/questions/337117/… – Pricey Oct 30 at 15:10
43

This meta discussion might just be the trigger that causes history to repeat itself like in the The Aol [sic] Chat Room Monitor Revolt of the 1990s.

Relevant quote:

As happens to many growing Internet companies, Aol’s [sic] users turned against the company when its behavior took on a decidedly corporate feel. In 1999, during an online meeting with all community leaders, Aol [sic] management announced that volunteers would no longer receive free Internet service; instead they would receive a discounted rate. At the same time, Aol [sic] began to monetize its chat rooms and message boards by introducing advertisements.

Suddenly Aol [sic] felt like the for-profit it had always been, not the community that had relied on volunteers since its early days. Monitor Brian Williams tried to organize a strike in response to the reduction in their compensation. When Aol [sic] responded by firing him, he got a lawyer.

Uh-uh ...

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    Really interesting link. Thanks for sharing! The situation is different here, as the AOL monitors were getting paid (in free internet) and apparently had set shifts (enforced with time-cards!), so it's much less clear that SE mods are employees. But is is definitely a worrying precedent... – divibisan Oct 30 at 21:39
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    It already feels like the Reddit moderator blackout of 2015 (article also mentions the unpaid wages settlement of 15 million from the 2005 AoL lawsuit). – LinkBerest Oct 31 at 12:01
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    If you want to end the use of community moderators on Stack Overflow(/Exchange), that would seem to be the end result of that suit. And with a $15 million settlement, lawyers would expect to get paid... But I'm finding it difficult to find parallels - the AOL "monitors" had time-cards, submitted shift reports, provided customer service, and got free internet access (saving them hundreds per month, as you paid by the hour back then.) – Aaron Hall Nov 1 at 14:34
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    Another quote from that article: For-profit companies don’t have volunteers; they have lawsuits waiting to happen. — history repeating… – VikingoS says Reinstate Monica Nov 6 at 11:06
  • @AaronHall I see some parallels but agree there are not many. Also, I would consider the moderation efforts here to fall under the education exemption at least under Federal Law (I do not have enough exposure to NY's specific law to comment on it) or just not fall under volunteer labor (as moderators are "users", "clients", "customers", etc... and this would just fall under using the site). – LinkBerest Nov 6 at 16:20
  • @LinkBerest Which educational exemption are you referring to? The only ones I can find are inapplicable. – rockwalrus-stop harming Monica Nov 6 at 23:10
  • @LinkBerest - I hope you will post an answer, with a link and a quote from the relevant federal law that you found. – aparente001 Nov 12 at 18:02
  • @aparente001 not until other policies change or something happens. To be honest this is the first time I've been on in a while and I will not post anything until I am sure SE has changed it course in some way (which more and more is looking like "I just will not post anything again ever") – LinkBerest Nov 13 at 15:27
  • @LinkBerest - I would hope that you will work with others (including me) to find a solution to the problem. Unfortunately I'm not telepathic, so unless you write something, I will have difficulty grasping what you were getting at. – aparente001 Nov 13 at 15:29
  • @aparente001 the solution for users is "can I work with SE as it has become or not?" currently I'm waiting on them to see determine the answer to this question. Users have said enough, answers are needed or silence will be taken as the answer. – LinkBerest Nov 13 at 15:31
  • @LinkBerest - But some of us are working on a strategy. At least I am. By the way, the prohibition on for-profits using volunteer labor extensively appears to exist at the federal level as well. – aparente001 Nov 13 at 15:33
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I'm not a lawyer or a legal scholar, so I'm going to ignore the exact legal prescriptions and instead explore the spirit of the law. How much are moderators like employees?

The tasks that moderators do are tasks that moderators could be paid for: handling complaints (typically submitted via flags), handling support requests (typically submitted via meta), performing tasks that others cannot do after verifying that the action is warranted (editing, closing, reopening, deleting, …), providing guidance and leadership to the community (again typically via meta), etc. Community managers do those tasks as part of their paid job.

Moderators never have any obligation to work on a particular schedule. Moderators do not have any obligation to work, withone significant exception: moderators on Stack Overflow are expected to spend a minimum of time. I'm not aware that this has ever been enforced, but it's possible that some SO mods who stood down voluntarily because they couldn't keep up with the expected level of activity would have remained if there hadn't been any pressure for them to maintain a high level of activity. Even with this caveat, in terms of obligation to perform, moderators are different from employees, who have to work when the employer requires it.

Moderation is more of a gig. The legal status of paid contractors is a point of legal and political debate in many jurisdictions. Regardless of whether habitual contractors should be treated like employees, they always expect to be paid for completed work.

So what moderators do can be considered work. Do moderators work as directed by the company? The moderator agreement — which has no legal force, since it isn't a contract (the most that Stack Exchange can do if they don't like what a moderator did is dismiss the moderator, and they legally can do that even if the moderator hasn't violated the agreement) — states:

I will abide by the then-current Terms of Service of $SITENAME, and other moderator policies made available to me,

(…) I acknowledge and agree that I am an independent volunteer moderator to $SITENAME and I am not an employee, agent or representative of Stack Exchange Inc., and I have no authority to bind Stack Exchange Inc. in any manner.

These statements do not fully characterize moderatorship on Stack Exchange. Moderators are not only expected to abide by the terms of service and other policies, but also to enforce certain policies, such as the code of conduct. Moderators do not have authority to speak on behalf of the company, but they are often perceived to do so. Moderators are go-betweens, representing the company to the community and representing the community to the company. While moderators have considerable latitude in how they apply directives from the company, the company sets the boundaries. For example:

As a moderator, you're held to a higher standard and are expected to set a positive example for your community. (…) After that, if you cannot in good conscience follow it, reach out so we can find a replacement for you.

There are situations in which you cannot be a moderator and do nothing. Specific performance is expected. The only punishment is dismissal — but if an employee fails to perform as directed, the punishment is rarely worse than dismissal.

I can't speak for everyone, but for my part a major reason why I resigned¹ was because I was in some respects an agent of the company. This doesn't by itself imply a subordination relationship: I would have reacted in the same way if I'd been a member of a non-profit organization that had done something unconscionable and I'd lost any hope or interest of changing the organization from the inside.

This brings us to another criterion: are moderators purely subordinates of the company, or are they to some extent participants in decision making? Here the answer is very clear: moderators don't have a say. The company decides.

Finally, who benefits from the work of moderators? That's a bit hard to delimit. There are benefits to the world in general, to the community in particular and benefits to the company. The world benefits because the repository of knowledge is better curated. The community benefits because moderators wield some of the tools that make it work and serve a social function to regulate the community. The company benefits because moderators are effectively delegates of the company: the company could hire enough moderators to cover the work that moderators do, but doesn't thanks to the volunteer moderators.

I think I can speak for pretty much all current and former moderators in saying that the reason we do or did this is to benefit the world and the community, not the company.

So are moderators similar to employees? To some extent. Certainly enough that there is no clear-cut yes or no answer. There may be a clear-cut answer within the scope of a specific law, but I'm looking beyond that.

Now I never expected to be paid and I would not have been a moderator for pay. I'm sure that the former is true for all of us and the latter is true for most.

Paid moderators would have a very different relationship with the community. Even though moderators are sometimes perceived as agents of the company, they are first and foremost community members. A monetary relationship would destroy this. Having moderators who are and remain from the community is important for community cohesion and for the health of the community. People who face the same problems that other community members are facing are more likely to take decisions that benefit the community.

Moderators should be giggers, but giggers on behalf of their community, which is itself a volunteer endeavor. The current status is that moderators are giggers on behalf of both their community and the company. This creates ambiguity which is detrimental to everyone: to the company (who may have legal and financial obligations that it hadn't bargained for), to the moderators (who face conflicting responsibilities when the interests of the company diverge from the interests of the community), and to the community (because moderators cannot fully act on their behalf).

This needs to change. The governance of Stack Exchange needs to change. We need to distinguish the platform (the servers, the software), managed by a for-profit company, from the communities (the content, the moderation), managed by a non-profit. And then moderators would be volunteering for a non-profit organization, which carries no expectation of pay.

¹ Background: I was a moderator for over 8 years, across 5 different low- to moderate-activity sites (1 to 3 at a time).

  • 2
    Not only would I have not wanted to do this for pay, but getting paid to do it creates a whole other host of professional issues related to employment laws, professional decorum, protecting company interests, contracts, etc. I don't want any part of that. I want to be a volunteer, and I want to help the communities as a volunteer. – Web Head Oct 30 at 21:32
  • You're right that the moderator agreement doesn't legally meet the definition of "contract". I wonder if it wasn't run by a lawyer or if they chose not to make it a contract on purpose. – rockwalrus-stop harming Monica Oct 30 at 22:25
  • Almost all the points you make about mods are equally applicable to any active member. I don't think the gig analogy works here, not unless you see all actively contributing members the same way. For instance, you've done more curatorial work (edits, tag wikis, tag organizing etc.) on Unix & Linux than anyone else and you're not a mod there. – terdon - stop harming Monica Oct 31 at 9:22
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    @terdon Indeed. Contributors are giggers to some extent as well, and I would prefer to contribute to a project governed without commercial interests, like Wikipedia. A significant difference however is that mods are expected to enforce directives from the company and not just respect them. This makes the current situation more problematic wrt mods than other contributors. – Gilles 'SO- stop being evil' Oct 31 at 11:34
  • @Gilles'SO-stopbeingevil' yes, I'd much rather have a non-profit too, but I knew what this was when I signed up. As for enforcing, that's a fair point, yes. Although, personally, I've always considered that my job was enforcing community policies rather than company ones. But then, maybe that's just because I'd usually agreed with company policies (be nice etc) so it was never an issue. – terdon - stop harming Monica Oct 31 at 11:52
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    @WebHead: It appears that NY allows you to volunteer; the only restriction is that the organization must be an educational non-profit. I.e. the problem is not on your side, the problem is on the SO, Inc side. They have incorrectly assumed that they could build a for-profit company on volunteer contributions, and that seems illegal. – MSalters - reinstate Monica Nov 1 at 12:10
18

Makoto wrote:

If it is, what's the legal remedy you're seeking?

Stack Overflow Inc. would be made to pay back all of the moderators it's ever had on its site for however many countless hours of work that they had put into the site if this turns out to be something which needs to be enforced.

That would...destroy Stack Exchange.

Without weighing in on the legalities (IANAL) surely one possible remedy would be for SE to be converted into a Not-Profit Charitable (Education) Trust (that might be "Foundation" in American-ese, as in the "Wikimedia Foundation") run by a board of elected trustees abiding to a Trust Deed. People come to SE to ask questions and provide answers, sounds educational to me.

As a charitable trust it could have volunteers. It could maybe run off donations (like Wikimedia) but there is no reason (at least in the jurisdictions I know) that a charity cannot have commercial activity to raise funds (the dreaded word "advertising" comes to mind).

In the US Purdue Pharma is being required/wants to transition from a profit-at-any-cost business into some form of non-profit as part of its restitution for past misdeeds (please do not get sidetracked on the specifics of that case, its just an example), so the idea is not unknown and I don't take credit for it.

Given the recent concerns raised by many over copyright issues and moderator firings I'm guessing there might be quite a few folks who would welcome such a transition regardless of any NY law concerns – I guess the comments/votes will indicate whether that guess is correct.

Over to lawyers to work out the details...

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    I, For One, Welcome Our New Not-Profit Overlords – aloisdg says Reinstate Monica Oct 31 at 9:35
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    They're not going to turn it all over to a non-profit because they depend on a few large sites. But they could spin off the vast majority of communities that aren't profitable and that they probably don't even really care about, and then figure out how to comply with NY law for the smaller remaining set (which would include SO, of course). The company cares a lot about SO but probably does not actually care about Writing, Christianity, or Blender, for example. Facilitating a graceful exit (including software support) for most communities would benefit everyone. – Monica Cellio Nov 11 at 16:38
13

On the "No" side, I found an article that suggests that maybe the Huffington Post model for contributing to online publishing is kosher. I noticed that the Stack Exchange model has some similarities to the Huffington Post model. The article, "AOL Settled with Unpaid “Volunteers” for $15 Million: Why the HuffPost bloggers won’t be so lucky, and why that matters," is here. Here's an excerpt:

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.

[...]

The Huffington Post: it’s a forum for [writers] 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.

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    I heard that argument from a top SO user who answers questions there from readers of his books, too. But note: he is a user, not a moderator. What is the "gain" that moderators have for their work? – GhostCat says Reinstate Monica Nov 1 at 5:27
  • @GhostCatsaysReinstateMonica - You mean, here? There's a question, Why do I stay? Maybe that is a start at answering that question. – aparente001 Nov 1 at 5:32
  • I wrote an answer there, maybe I will update that later on accordingly... – GhostCat says Reinstate Monica Nov 1 at 6:15
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    As I alluded to in another comment, much hinges on whether the judge decides that moderators volunteer for the community or for the company. But the fact that SE lets its employees moderate on company time makes the argument that moderators moderate for the community much harder. – rockwalrus-stop harming Monica Nov 1 at 16:49
  • This is from the commentariat, not law or case-law. What a journalist thinks will happen in a case about people who blog and provide content (I don't see even any references to moderation) seems irrelevant to this particular case. – Kirk Nov 5 at 23:26
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    This quote makes more sense for normal users than it does for moderators. – Sonic the Reinstate Monica-hog Nov 6 at 0:46
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    This would be an argument why people who answer questions would not be employees; the tasks expected of mods are rather different than the ability to just express yourself. Further, they can eventually be removed if they continually fail to perform those assigned tasks, while someone who just contributes answers can choose to disappear for a decade and still expect all the rights and privileges they had before. – Glen_b Nov 6 at 2:02
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    I think you'd have to treat moderators as a special case. Regular users "express themselves on the forum". But moderators in their role don't do this. They are tasked with maintaining quality, removing inappropriate/illegal content, disciplinary actions etc. Basically volunteer quality control/maintenance. – Lundin Nov 12 at 9:12
10

Moderators as "Unpaid volunteers" is wrong in all cases for SE.

NY Agreement

Other answers have already mentioned this, but illegal in New York (NY) could also be illegal in other areas.

Moderator Agreement likely Violates Federal Standards Too

Regardless of any one volunteer's intentions or desires or the agreement that moderators sign (which in itself is likely not be a legal contract), moderators are assigned tasks that normal employees for the site carry out. If work is done by paid employees and the business in question is for profit, then the work is not that of a volunteer. It's employment work.

The Department of Labor

The Fair Labor Standards Act (FLSA) defines employment very broadly, i.e., "to suffer or permit to work." However, the Supreme Court has made it clear that the FLSA was not intended "to stamp all persons as employees who without any express or implied compensation agreement might work for their own advantage on the premises of another." In administering the FLSA, the Department of Labor follows this judicial guidance in the case of individuals serving as unpaid volunteers in various community services. Individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.

Under the FLSA, employees may not volunteer services to for-profit private sector employers.

The problem is that Stack Exchange is for profit. It does not qualify as a religious, charitable or non-profit organisation.

As demonstrated, Stack Exchange asks for specific work, has a minimum hour requirement, and asks its own employees to do the same work as the volunteers and pays those employees.

Regardless of anyone's feelings, this seems quite clear, unless SE can demonstrate that somehow moderators are working for their own advantage. That's the only path through the law to take.

It's a weak argument, to me; but an argument. Unless there is some competing standard, only a very political judge would rule in favor of SE unless they were redefining what a humanitarian objective was.

Example

My prior post was deleted by a staff-moderator - which you can see if you have enough reputation. Hence, moderation is performed by SE staff. Ironic-qed.

Natural Rights

There is no basis in law for this argument, but I would argue it holds nonetheless. If we have a right to property we have a right to be compensated for our work. Anything else is slavery.

At the end of the day, every person deserves compensation for their work and that any group asking work out of another should be willing to compensate them for it. I do not believe, as a former moderator (not SE), that "a quality forum" is enough of a reward for the duties of moderation which intercede into life and necessitate a divorcing from participation on the forum as one might do if they were not a moderator. So even at the highest level of standards, one’s moral code, (which sometimes supersedes the law when we make decisions) this is still wrong.

Employee protections

These protections are in place as much for moderators as they are for employees of the company, such as community managers. It prevents hours and wages being cut from those already under contract as much as it protects the "volunteers". Wage theft hurts everyone.

Market Advantage

If you think about Q&A sites, quality is a differentiator. Is Stack Exchange getting an unfair advantage over another company that uses paid moderators?

Stack Exchange is Undeniably Useful and Better for the Moderators it Has

All of this was an exercise in explaining the legal field in which Stack Exchange exists. Whether we like it or not. The law is what is written down and codified. Don't get mad at the referees. There are ways, explained elsewhere, for Stack Exchange to change its business model to comply and still provide a great service.

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    I was curious and the UK has even stricter laws than the US does. Not familiar with international employment, but I wouldn't be surprised that hiring someone in another country subjects you to following their laws. The moderator agreement would be enough to say anyone from the UK is an employee according to this site: blog.thebiggive.org.uk/advice/… -- I'm sure there are equally strict euro-zone laws out there that may come into play. – Kirk Nov 6 at 18:06
6

The (non legally binding) consensus answer seems to be yes. SE could side step this one of two ways:

1) The easy way: Spin off the SE platform as a non profit, take the SE for-profit services and separate them from the non-profit community platform. Ad revenue supports operating costs, including paid company officers, and outside a by-law governed maximum cash reserve, charitably contributes overages.

2) The hard way: convert every registered user to a benefit receiving freelance contract employee paid in profit sharing based on reputation. This would no doubt skew activity towards a profit motive, and every user would be required to set up some means of accepting payment. Messy, crazy, but market driven and allows everyone involved to profit.

I personally favor the first approach, but the second is interesting if SE is determined to be autocratic and build a profit engine on top of community contributions.

  • 2
    It's notable that "profit sharing" isn't sufficient in 2). They are still obligated to pay minimum wage if it's less than the profit share would be. – rockwalrus-stop harming Monica Oct 31 at 20:41
  • Surely 2 is completely untenable if only because of the backpay moderators would be owed? – SolveIt Nov 1 at 4:40
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    I don’t think the two ways to fix it listed are the only ways. The easiest way to reduce Stack Exchange’s exposure here would be for the legal team to figure out what parts of the system are most likely to be interpreted favorably toward the “unpaid employee” finding and change them to be more favorable to the “not an employee” finding. It could be that such a review reveals that there’s no exposure at all, counter to what the armchair lawyers believe here on meta. – ColleenV parted ways Nov 1 at 15:05
  • Good point, @ColleenV and probably what is currently under way. – J E Carter II Nov 4 at 13:53
5

If it is, what's the legal remedy you're seeking?

Stack Exchange, Inc. would be made to pay back all of the moderators it has ever had on its site for however many countless hours of work that they had put into the site, if this turns out to be something which needs to be enforced.

That would...destroy Stack Exchange.

We'd lose a significant amount of value that has been put onto the network, as well as jeopardize any chance of that value ever coming back, since the cost of moderation is probably on the order of millions of dollars in just man-hours alone.

Consult an actual lawyer with a firm if you wish to watch the world burn as opposed to us.

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    Even if it didn't destroy the company, it would be a class action suit, so the lawyers would suck some money out of SOI, and all the moderators would get a coupon for a free burger. – fixer1234 Oct 30 at 19:29
  • @fixer1234: Yeah, that's not the point. It doesn't matter who gets the money in the end. All that matters is Stack Overflow Inc. wouldn't have that money. – Makoto Oct 30 at 19:31
  • Agreed. My point was that even winning such a suit wouldn't benefit moderators. – fixer1234 Oct 30 at 19:33
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    I'll paraphrase what I said above: OP isn't suggesting SE do this or anything like that, all OP did is wonder if they were running afoul of the law. I don't necessarily agree with OP's premise, but it's not a dumb question to ask simply "do they run afoul of these laws?". OP isn't proposing anything - they are just asking a question, so why would they need to come up with a legal remedy. If SE was in the wrong, that's the courts job, not OP's. – patricksweeney Oct 30 at 19:53
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    @patricksweeney: That doesn't satisfy my question. Laws don't exist as a deterrent, in spite of what you've been taught. They exist as a way to right the wrong or redress the circumstance. In this case, the circumstance is, "should Stack Exchange volunteer moderators be paid?" (This quietly overlooks the whole curator vs. moderator argument, too.) If that's the case - and again I'm no lawyer - then the law would then prescribe a remedy. Asking if something is illegal is saying, "What is the punishment available if you did X?" – Makoto Oct 30 at 20:48
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    RE: "That would...destroy Stack Exchange.", they did this to themselves by inviting a lot of scrutiny when they publicly fired a moderator -- an unpaid volunteer. – Saheed Oct 30 at 21:20
  • @Saheed: So you're willing to allow the entirety of the good of Stack Overflow, and the value that it has genuinely brought hundreds of thousands of engineers the world over be sunk over this controversy? How is that equitable to the others who don't know about any of this? – Makoto Oct 30 at 21:25
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    @Makoto no, that's not the objective. The objective is to make SE switch to a vehicle that is fit for purpose -- a non-profit is a far better custodian of the value created by volunteers than a for-profit, otherwise the problem of misaligned incentives will remain. Jimmy Wales avoided precisely this problem by making Wikipedia a non-profit. See the article in meta.stackexchange.com/a/337229 – Saheed Oct 30 at 21:37
  • @Saheed: That's basically holding a gun to SE's head to compel them to do something that they clearly don't want to do. It also wouldn't retroactively redress any alleged violations. – Makoto Oct 30 at 21:44
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    @Makoto Even if hypothetically SE, Inc went bankrupt the questions and answers from the community would still be available under CC-BY-SA. – rockwalrus-stop harming Monica Oct 30 at 22:20
  • @rockwalrus-stopharmingMonica: Sure, but who's going to actually host all of that data? There's a non-inconsequential value attached to doing that. Just because the data "survives" doesn't mean that it's going to be as accessible as it once was. – Makoto Oct 30 at 22:28
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    @Makoto A nonprofit organization devoted to providing high quality Q&A would be a good option. See also meta.stackexchange.com/q/336246/628364 – rockwalrus-stop harming Monica Oct 30 at 22:38
  • Where can one obtain a copy of the SE data? – little_birdie Oct 31 at 0:13
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    @little_birdie, archive.org/details/stackexchange – Mark Oct 31 at 1:10
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    If SE were found to be violating labor law, I wouldn't want to ignore that just because SE is useful. – treat your mods well Nov 18 at 1:59
3

The US Code Title 17. "Copyrights" - Chapter 1 - Section 101: Definitions states

The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

The Stack Exchange community/network is one big open source project that runs on the Stack Exchange platform. Everyone who contributes effort and content (value) to it receives value in return. That value might be skewed with those who just post questions receiving way more value than they contribute, and moderators providing way more value.

This could get into a State vs. Fed issue and it could also be a matter of moderators are providing a service to the platform, and not content for the community. So it is certainly complicated.

  • Posting questions shouldn't be regarded as having less value than posting answers (as your post seems to imply). Without the questions - often phrased in multiple ways - no one would be able to search for an answer. – Matt Gutting Oct 30 at 16:43
  • Just plain wrong. SE is NOT "open source" , or open anything. Both the platform and the data are closed. – little_birdie Oct 30 at 18:54
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    @little_birdie: "Just plain wrong"? That's very bold words for such a claim, especially given the fact that every page states that the data is in fact open under CC-BY-SA-4 (or 3, for those that believe the law takes precedence over SO,Inc's opinions). SO, Inc doesn't even own the copyright on the data. – MSalters - reinstate Monica Nov 1 at 12:16
  • I know the diff between an actual open project and "fake open" and there are plenty of projects like that. I was there at the beginning of the commercial web, all thought the 90's.. I've seen enough to spot the difference a mile off. But, u know.. you're certainly entitled disagree. – little_birdie Nov 3 at 18:23
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    @MattGutting I agree with you, most questions are very valuable to. There are some that post questions that are not easy to answer, or are otherwise of low quality. But I suppose the same is true of many answers. I was just trying to make a concession that some people contribute more value than others. – Jim McKeeth Nov 6 at 19:51
  • @little_birdie What makes it "fake open"? The content is licensed under an open license, and is easily exportable for other uses. Much the same as Wikipedia - even though both are typically tied to the platform that hosts them. Do you consider Wikipedia "fake open" too? – Jim McKeeth Nov 6 at 19:53
1

The people who work for SE are the developers, marketers and members of their other teams and the people who support them. These teams produce, maintain, market a product which is a platform that one group of their customers use to create questions and answers on various topics (the others being advertisers). Their customers in the public sites are people who have the hobby of producing questions and answers on specific topics and doing that together with people. People who, for whatever reason, choose to devote their time to SE are not different than people who are in other kinds of club-like communities that use public parks or rented space or other platforms/places that they don't own, some of whom are very highly engaged and others are more casual.

If you are feeling resentful because it feels like a job, it's time to take a break. If it is not fun, take a break. The world will not end and your site will not fall apart if you take a break (or if it does, it was not a functional site anyway). I share the tendency to getting overly involved in things and to feel overly responsible for everything, and the need to step back when it gets unhealthy is a lesson I learned a long time ago. No one else is responsible for your decision to spend the amount of time on a hobby project that you are spending.

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    This makes a lot of sense from the point of view of a non-moderator participant. Also, for a moderator who resides somewhere other than the US, this might make sense too (although SE does have an office in London, I believe, so there might be some violation of EU labor law, or individual countries' labor laws, I don't know). But for a moderator in the US, what I have read seems to say that for-profit companies are not permitted to use unpaid workers on an ongoing basis. If you've found some case law or guidance letter or fact sheet that provides a loophole for this, I hope you'll share it. – aparente001 Nov 18 at 1:38
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    @aparente001 They aren't unpaid workers, they are people who are doing something they should enjoy or stop, just like being president or treasurer of a club. Yes it is more responsibility and work than a regular member, but yes it is still a hobby. – Elin Nov 18 at 1:44
  • If some moderators want to take this approach, that's up to them. Far be it from me to criticize anyone taking such a stance. However, if some moderators prefer to take a proactive approach, to try to make things better, I hope we can agree that that is a personal decision, best left up to each moderator. – aparente001 Nov 18 at 1:49
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    This answer suggests that legally they might be considered unpaid workers for the company - meta.stackexchange.com/a/337119/262225 – Matt Gutting Nov 18 at 1:50
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    Well practically, OP isn't a moderator so... There's no reason for them to feel resentful on our behalf. Actually stuff like this makes it harder not easier for mods since we have enough of the current drama on our plate without new, unrelated, distracting sources of drama. – Journeyman Geek Nov 18 at 2:02
  • Exactly, when I was super involved in an open source project I saw this a lot. Actually also the same when I was head of the Parents' Association and various other roles. Then you realize that if the organization can't survive without you doing whatever it is then it's not a functional organization, and you yourself may be part of the problem. Otherwise it will survive and be different and that's okay. – Elin Nov 18 at 2:58
-5

No. And here is why I think so:

SO is something that is perhaps based (located) in the US, but it has an international span - a sort of international company if you will. The problem with such companies and legalities is that each franchise must follow rules of country it is located in. But SO doesn't have franchises, so its legal issues are mostly determined by popular vote (using the website is deemed as ok, not using the website is deemed as not ok) and one could argue that location of the website is under jurisdiction of where servers are located at (or the seat of the company) - but in that example, and ever-moving servers are then difficult to place under any jurisdiction - since servers (or their content) can change location, and the company can relocate.

And as that, it shows that any presumed legality of any company that has an online presence is enforced by the country it is in, but since the span of such a company overreaches its territorial borders, it is easily circumvented.

One can argue that the ILA (International Law Association) could get this case, but the issue here is basis of all countries’ constitutions (and by proxy their laws) that are built upon up to five international papers among which are human rights as the original base (among monarchy succession, what constitutes independence of the country... ). So ILA often just translates from the laws of one country to the laws of another - among bigger issues.

In general laws, are detailed implementations and descriptions (with exceptions) of constitutional rights. So if one country A has "By law XX one is deemed qualified for the job once he/she is of right legal age (defined by law XY), and one can start new working position as long as she/he isn't in prior contract..." and country B has "By law XX one is deemed qualified for a job once he/she is of right legal age (defined by law XY), or of amendment of Z.X with consent of their guardian" the main issue is translation from how to make both countries happy that a person who is from country A, working in country B is the right age (with/without consent of their guardian) and it doesn't have a job already.

The reason why any petition often doesn't work here is because we need laws to further explain how people should govern themselves, and any international case must beforehand follow (first) international law and (second) everything else. That is the reason why most terms of services first list the country a company (product) originates from, and then in general laws that are from that country. Since I am in Serbia, Apple will not prosecute me if I mess with its branding/product - I mean they can try... but good luck.

And this is also the reason why most international rules in the Internet society follow basic discrimination (and/or oppression) act with no more than that (constituted by human rights).

So, as conclusion: There is no chance in hell that SO can be beaten in court (or any other legal object) in this case, since everyone already moderating here are:

  1. Doing it on their own volition - which means they are willingly breaking the law in their state/country by act of intent
  2. Laws don't work retroactively (laws that are made/constituted after company is established don't work on prior issues ) - aka they start working at the moment they are announced public.
  3. "I didn't know" - is never a good defending policy. And SO has our data on the server, so any misnomer (however minuscule) in our part can be bad for us in a court of law. Their lawyers know a lot of loopholes, and differences.

And even if someone (by luck/or something else) succeeds in prosecuting SO, that someone is effectively shutting down their own country from SO, and due to nuances in international law differences next moderators could be of anything but American nationality.

In reality, the Internet social community is poorly regulated since no one knows under which law to regulate it. We are used to have local laws as our guides, and no one to take our side. Aside from basic human rights (which are further detailed implemented by law) even if human rights are broken, no one can actually pursue it. We don't have our international government, international laws, and international courts.

So I understand that probably you have found this law of your own curiosity (or desire to be payed for your modeatorship), but SO has no desire (or need) to grant you your request unless you have some leverage.

Employment and labor laws and regulations - for USA citizens

  • 1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?

No, written contracts of employment are not required. Federal employment laws do not require employers to provide employees with specific information; however, state and local employment laws may require particular information to be in writing.

But among others, the rest of regulations (explained by these lawyers) is highly dependent on state and local employment laws. If a new law is to be written and accepted, for federal acceptance, over 51% (I think) of states must accept it. If law isn't accepted (as an example of amendment of women rights currently in USA, 38 are needed) or appealing to be accepted, regulation of such laws are independent and outside of the constitution. Built on the constitution, often comes a federal layer of regulations, and then implementations of law from state to state. So laws can differ in nuances or in differences from state to state, and therefore the jurisdiction can vary.

  • 1
    I'm currently leaning in the direction of my "no" answer -- but the jury is still out. // One thing I've been able to establish with some degree of confidence is that the company, being based in New York City, does appear to be subject to the labor laws of New York State. I suppose that its London office would be subject to the local laws there. What I don't know yet is whether the volunteer moderators are protected by the laws of New York State. Maybe the ones residing in NY are; maybe not even them. I will post updates as I learn more. – aparente001 Nov 4 at 3:04
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    The terms of service we agreed to state that New York is the jurisdiction for our agreement. There’s not much question about where such a complaint must be brought. – ColleenV parted ways Nov 5 at 18:19
  • @ColleenV why did you change USA to US? Is there any grammatical difference or is it stylistic choice? I am just curious. It isn't that easy, if you are American citizen, you could hold it accountable by NY laws, but if you aren't you can't. After I did some research, SE company is located in NY - and therefore its founding, structure and legal acts do follow trough NY laws - which in turn regulates the relationship between state and company, and between employees and company. – Danilo Nov 5 at 19:08
  • Most of us are neither, so if anyone wishes to try to do something, since they aren't in working relationship with co. only way they can get anything is to try to force it by some other violation - most often human rights act, constitution and etc that are either same trough out entire USA or World. To do so, they would need to go over to ILA or to some sort of American Law Association (or something similar) to do anything out. Because I am not New Yorker (I don't know about you) New York laws don't apply to me, since it depends on jurisdiction - which is governed by law. – Danilo Nov 5 at 19:11
  • Take this criminal case for example (albeit this isn't criminal law, similar issues apply): Person A killed person B on person B's territory. Since crime is located in B's territory, jurisdiction and laws that apply are from local laws (B). In this example, issue at hand is at which location? Infringement happened online, and it is enforced online and with no tie ins state, company, employees relationship - but with volunteer company. So this is locationless issue. – Danilo Nov 5 at 19:15
  • And you are right, the company and any relationship/sale that company does falls under NY jurisdiction, but that only applies on if Apple wants to work with SO , it must follow the rules of location where SO is located. And as that, it will form an arbitration court to regulate or settle any differences. That is why there are unions/guilds, since you as not legal persona can not work with company, but guild/union in your place can. – Danilo Nov 5 at 19:20
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    The US/USA change wasn’t significant. I was on my phone and I guess my autocorrect suggested US because I use that more often. – ColleenV parted ways Nov 5 at 19:42
  • Thank you for your clarification :D – Danilo Nov 5 at 19:45
  • 3
    Most of New York State's labor laws have no explicit geographic restrictions. I tried looking for a ruling on whether they apply outside of NY in this circumstance, but it doesn't seem to have come up yet. – rockwalrus-stop harming Monica Nov 5 at 22:15
  • @rockwalrus-stopharmingMonica ofcourse state laws don't have explicit geographic restrictions, since they are restricted by federal law - aka geographic restrictions are implied. I have added an example of USERRA snippet and some more info about structure of USA legal system. – Danilo Nov 6 at 10:28
  • Mistake on my part, there are no geographic restrictions, there are territorial (since geography can change , but territories less often). – Danilo Nov 6 at 10:57
-6

We Are All Responsible for Moderation in SE Communities

The community as a whole is responsible for moderating the community. That makes each user a moderator. The diamond moderators are elected by the community; SE does not select them. There is no way a diamond moderator could be considered an employee of SE. SE doesn't select them and doesn't hire them. Why should SE be required to pay them?

  • The work that Moderators do might be considered labor. They happen to do this voluntarily but it could easily be done with construction by which they are payed (and many websites have paid moderators). Also the moderators do work under a contract (and since the recent new FAQ - orders from the company - are required to follow some set of higher standards) and can be fired from their duties.... – Sextus Empiricus Nov 6 at 13:44
  • 1
    ...The moderators do not have a contract that is the same as a payed worker (it even explicitly states this with "I acknowledge and agree that I am an independent volunteer moderator to Cross Validated and I am not an employee"), but they do have some work relationship that resembles it (that particular line - voluntarily agreeing with no salary - might not be legally correct). The other contributors, power-users, on SE are different. – Sextus Empiricus Nov 6 at 13:44
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    "The Diamond Moderators are elected by the community, SE does not select them." SE selected the moderators on Meta.SE (excerpt): "Monica is an experienced moderator across the Stack Exchange network and we thought it would be presumptuous to ask her to step up yet again; that was a little short-sighted of us because she's been rocking it here and has the cycles to come on board." – Anne Daunted GoFundMonica Nov 6 at 13:54
  • 1
    I agree that there is a pyramid structure from the point of view of How does SE keep its public Q&A sites tidy? But garden variety subscribers don't suffer consequences such as removal of a privilege if they stop participating in review queues, etc., whereas an elected or appointed volunteer moderator can suffer such a consequence. – aparente001 Nov 6 at 14:24
  • @AnneDauntedGoFundMonica Please correct me if I am wrong, but all of those moderators were elected by their communities prior to being selected for MSE. At no point did SE offer them jobs, just a reward for being good moderators. – pacmaninbw Nov 6 at 16:40
  • Tim mentions their reasoning behind appointing dedicated MSE moderators: "I'm sure you've all noticed the recent up-tick in off-topic questions as well as a tad more than the usual snark in comments, these folks will definitely help with that." The offered moderator position was not a reward, but experienced users were more welcome, for obvious reasons. A moderator's job is to handle flags, deal with trolls etc. in their own free time. – Anne Daunted GoFundMonica Nov 6 at 16:51

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