
Is Stack Exchange in violation of NY labor law by using volunteer moderators? - gortok
https://meta.stackexchange.com/q/337117/16587
======
adrianmonk
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.

~~~
pimterry
It's not about unpaid work though, it's employee-like unpaid work.
[https://meta.stackexchange.com/a/337123/345240](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.

~~~
klmr
> _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.

~~~
fabian2k
The official limit is no activity for 6 months, at that point the moderator
status is supposed to be removed. This has been enforced rather inconsistently
at times.

~~~
daveoc64
But does that mean that the moderator can just take one action every six
months and retain their status?

You couldn't do that in a job!

~~~
phreack
You can absolutely do that in some very specific kinds of jobs, I've seen it
first hand in public offices.

------
jsonne
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.

~~~
Macha
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.

~~~
unlinked_dll
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.

~~~
dx034
I believe the key difference also is that you can just not do your work
without reddit really minding (that's how some subs have died). That's very
different from Stack Exchange.

------
JoshTriplett
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).

~~~
jasonlotito
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.

~~~
danShumway
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?

~~~
shkkmo
> 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.

This is literally the distinction discussed in the posted question and is
pretty standard law in the US. What negative consequences do you see as a
result of this?

~~~
danShumway
Not all Open Source companies are nonprofit.

See Redhat Linux, Gitlab, Chromium, Docker. If a volunteer helps triage issues
for these projects, is it a violation of labor laws?

If only nonprofit Open Source companies can use the benefits of Open Source
development -- community involvement, community moderation and support, 3rd-
party patches, etc... that's a really big reduction in who can participate in
Open Source, particularly during a time when we're increasingly worried about
Open Source funding and sustainability.

Gitlab even organizes events around community contributions.[0] If the effect
of a law is to make it harder for a community to get directly involved with a
product, that's likely a negative consequence. I really like that I can get
involved with Gitlab. I don't feel like Gitlab is exploiting me.

[0]: [https://about.gitlab.com/community/issue-
bash/](https://about.gitlab.com/community/issue-bash/)

~~~
jasonlotito
This is begging the question.

> If only nonprofit Open Source companies can use the benefits of Open Source
> development -- community involvement, community moderation and support, 3rd-
> party patches,

There is more involved here than any one of those things mentioned. There are
certain requirements that need to be met. You listed the five criteria New
York has, and so in New York's case, those requirements would have to be
considered. Simply having moderators doesn't mean you run afoul of the laws
behing discussed.

~~~
danShumway
Sure, but... that's what I asked. I wanted someone to expand on the
requirements that had to be met.

Would anyone be willing to explain in more detail on how the criteria differ
and why this doesn't apply to Open Source companies like Gitlab/Wikipedia/etc?

I brought up for-profit companies like Gitlab only to clarify why I thought
drawing a bright line based on purely nonprofit status as the only distinction
would have negative consequences.

> This is literally the distinction discussed in the posted question and is
> pretty standard law in the US. What negative consequences do you see as a
> result of this?

~~~
jasonlotito
> Would anyone be willing to explain in more detail on how the criteria differ
> and why this doesn't apply to Open Source companies like
> Gitlab/Wikipedia/etc?

I mean, they don't meet the criteria because they don't.

I guess I should ask: why do you think they meet all the criteria? What
specific reasons makes you think that?

~~~
danShumway
Well, taking volunteer commits to Gitlab just as an example:

\- Degree of Control Exercised

Gitlab has the final say over every pull request, on what issues they'll
consider pull requests for. Gitlab has a code of conduct and can ban
contributors that violate that code. Gitlab prioritizes and labels issues that
they want volunteers to look at. Seems equivalent to Stack Exchange's
moderation queue.

\- Profit, Loss, and Investment

Gitlab is a for-profit company. Open Source contributions get rolled up into
their for-profit enterprise offerings.

\- Skill and Independent Initiative

Fixing issues requires a great deal of specialized skill with the codebase,
some of which is codebase specific and not generalizable. Individuals can
choose to participate (similarly to Stack Exchange), but individuals are not
free to pursue any project they want. Participation means following Gitlab's
design process and looking at issue labels.

Similarly to Stack Exchange moderation queue, Gitlab hands me a list of issues
that are ready for development and I pick out the issues that I want to work
on.

\- Permanence of Relationship

Volunteer developers to Open Source projects often form long-term
relationships with the projects they contribute to. An answer on the main post
links to a 2009 guidance letter that calls out for a for-profit nursing home
as being in violation of the law for bringing in volunteers to help with
events.[0]

With that letter as context, it's not clear to me whether or not permanence
requires an explicit contract, or just an understanding that the activity or
event is not a rare, one-off occurrence.

\- Integral Part of Business

Developing software is an integral part of Gitlab's core business.

It's true that volunteers don't do all of Gitlab's development, but is that a
defense? If I was illegally exploiting employees by classifying them as
volunteers, I couldn't just say, "but I only did it to a few of them." As far
as I can see, the law doesn't say, "you can classify up to 10% of your core
employees as unpaid volunteers."

IANAL, I'm only here because I'm curious about any aspects of the law I'm
missing.

[0]: [https://www.labor.ny.gov/legal/counsel/pdf/Volunteers-
Intern...](https://www.labor.ny.gov/legal/counsel/pdf/Volunteers-
Interns/RO-09-0068.pdf)

~~~
jasonlotito
Thanks for answering. Good questions. IANAL either, but I figure I can share
my perspective.

> Gitlab has the final say over every pull request, on what issues they'll
> consider pull requests for. Gitlab has a code of conduct and can ban
> contributors that violate that code. Gitlab prioritizes and labels issues
> that they want volunteers to look at.

None of that is control the law is talking about. SE exerts control over how
much the work the moderators do. e.g. If you don't do enough moderating, you
are no longer a moderator. Also, anyone can be a contributor. SE doesn't allow
anyone to be a moderator in this case. If I'm not mistaken, you "apply" or are
"invited." There is a selection process, a "hiring" committee if you will.

> Gitlab is a for-profit company. Open Source contributions get rolled up into
> their for-profit enterprise offerings.

GitLab also has programmers doing this work as well. They are investing in
this area already. While GitLab benefits from open source contributions, they
aren't reliant on it. The suggestion is that if SE suddenly had no more free
moderators, they'd have to actually start investing in paid moderators.

> Fixing issues requires a great deal of specialized skill with the codebase,
> some of which is codebase specific and not generalizable. Individuals can
> choose to participate (similarly to Stack Exchange), but individuals are not
> free to pursue any project they want. Participation means following Gitlab's
> design process and looking at issue labels.

So, actually this is wrong: "but individuals are not free to pursue any
project they want". That's the nature of being open source. Contributors can,
if they want, start working on something else. That doesn't mean GitLab has to
accept their commits, but as a contributor, I can work on something else and
still contribute.

> Volunteer developers to Open Source projects often form long-term
> relationships with the projects they contribute to.

If their code is accepted, it will generally stick around for the life of a
project. One could argue that it's very much a long-term relationship with
just a single commit. That being said, I think the idea is the committing part
that matters. And there you have people that commit one change, and those who
commit many.

With SE, moderators all follow the same requirements. With GitLab, a
contributor can be defined as a one time committer or someone who has
committed hundreds of patches.

> It's true that volunteers don't do all of Gitlab's development, but is that
> a defense?

I think we can both agree the majority of GitLabs business needs are handled
by GitLab's developers it pays. I think it's fair to say they contribute
substantially financially to the software development of its product.

The way I look at it is simple. If SE were to hire moderators (which all the
social networks I know of do already), would their job and roll be effectively
the same as current moderators? I'm pretty sure they would look very similar.

Whereas with GitLab, you can directly compare the two and see that the open
source contributors and paid developers aren't effectively the same.
Requirements of code quality and passing tests aren't the same thing as
minimum time spent doing the programming each month.

I don't see any issues with open source projects suffering from this.
Contributors aren't treated like employees. Moderators at SE seem to be, with
requirements to show up and meet performance requirements to maintain
"employment" as moderators.

------
neom
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).

------
todd3834
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
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.

~~~
kube-system
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.

------
MoronInAHurry
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.

~~~
wolfgke
> 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.

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

~~~
qroshan
Just like programming.

An operating system provide a few set of basic services to applications, but
the linux kernel is some gazillion lines of code, because it has to work with
reality

~~~
wolfgke
> but the linux kernel is some gazillion lines of code, because it has to work
> with reality

Rather: Because the kernel developers care far too little about keeping it
small and minimal.

------
Animats
AOL got hit by that years ago.[1]

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

------
sokoloff
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
Classic SO.

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

~~~
nhumrich
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
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.

~~~
indecisive_user
Well by that logic you could say the same thing about retired people that take
part time jobs just so they have something to do every day.

They're not necessarily doing it for the money, and most states in the US
allow you to quit at any time without repercussions, but it'd still be illegal
to have them work for free.

It's more about whether the person is doing 'employee-like' duties and how
much control the company has over the person's actions that determines whether
they should be classified as an employee or not.

Users can come and go as they please, and post as infrequently as they like.
Moderators, however, must post with a certain frequency or risk being demoted.

~~~
hombre_fatal
Well, it's like you're saying volunteer work should never exist. You
absolutely have employee-like duties at the volunteer soup kitchen and
basically any volunteer outfit.

If someone really is just doing something to keep themselves busy and they are
perfectly happy not being paid, then that seems like a fair deal to me. I've
done that when my buddy started a bar at the beach. I would help him take
orders while I sat down there and he got some intermittent help. What's the
matter? Groveling for money changes the entire relationship into something
that I do not want.

I think you have to make the case that there's some sort of exploitation going
on. I could see how you'd make that argument regarding a 16yo "intern" who
bought your bullshit that they are bussing your tables 18 hours a day for
"work experience". But you lost me on your own example. Let's say, suggesting
that a retired millionaire who voluntarily takes orders at a bar for four
hours a day for fun is being exploited unless they're paid $2.15/hr like the
other staff.

~~~
RyanCavanaugh
The critical distinction here is that a soup kitchen is not a for-profit
venture, but Stack Exchange is.

~~~
hombre_fatal
It's certainly not a distinction users care about. And apparently it's not the
distinction the law cares about either since it's clearly much more complex
than that.

My forum is for-profit and users will line up around the block to be a
moderator. Why is it that the only compensation we can wrap our heads around
is money?

------
datashow
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.

------
mreome
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
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.

~~~
klmr
> _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.

------
hirako2000
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.

------
pmlnr
> 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".

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

------
KorematsuFred
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.

~~~
SnarkAsh
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.

------
shkkmo
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
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.

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

------
bmm6o
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.

------
Tomasz_Papka
Is this being inspired by a bunch of former moderators?

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

------
fortran77
Maybe they're in violation of some of those new "anti-bullying" laws. Ever try
asking (or answering) a question there?

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

~~~
yabadabadoes
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..

------
partingshots
Does this hold true for sites like Quora as well?

~~~
TheHypnotist
How about Reddit mods?

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

~~~
alistairSH
Is that true, or would they just need to have "employed" a moderator who
resides in NYS?

~~~
neom
I did some reading and I think you are correct.

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

------
SnarkAsh
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...](https://www.gofundme.com/f/stop-stack-overflow-from-
defaming-its-users)

\- 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...](https://meta.stackexchange.com/questions/333089/stack-exchange-and-
stack-overflow-have-moved-to-cc-by-sa-4-0)

\- Their general counsel appears to have left the company a little before all
of this happened:
[https://chat.meta.stackexchange.com/transcript/message/80154...](https://chat.meta.stackexchange.com/transcript/message/8015437#8015437)

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

I'm sorry but this law is kinda ridiculous.

~~~
Spooky23
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
What are unpaid internships if not unpaid volunteer labor?

~~~
alistairSH
There are specific criteria that should be met for an internship to be offered
without payment. Generally, an unpaid internship must be purely educational,
not displace employees, employer does not derive profit from the intern, and
there is no expectation of a job offer at the end.

At my employer, interns are effectively additional staff for the duration of
their employment, so they are paid market wages. The main difference between
their position and that of a junior employee is hourly wages vs salaried.

~~~
C1sc0cat
Massively Massively Abused by a lot of industries like Media (the trades
especially) and Fashion.

