Must AOL pay “community leaders”?

Labor Department inquiry raises thorny questions about volunteers' role in online communities.

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At Observers.net, a
revolution is brewing. Observers has become the online home for unhappy
former America Online volunteers and employees, a place where hundreds of
displaced AOL insiders both gripe and maintain longstanding friendships. The boards are an education in acronyms, as former “community
leaders” — the volunteers who spend their free time maintaining the
boards, chat rooms and community areas of AOL — compare notes and toss
around arcane terms like TOS, IM, ACI, SRT and the CLO.

Observers.net’s bustle is a testimony to the strength of the connections that members had made
inside the AOL system. As “Moozie,” one of the site’s founders, explains,
“An esprit de corps has arisen over the years — there’s a whole community of
volunteers, a network of people who have been friends for a long time.”
Observers.net is also, however, leading the charge against the program
that forged those friendships in the first place: A group of former
community leaders and Observers.net members has asked the U.S. Department of
Labor to investigate AOL’s volunteer system for possible labor law violations. The
question at stake: Are the volunteers, in fact, slaving away as unpaid
community employees?

It’s a subject that hits home for almost all online communities. Online
community companies, from GeoCities to iVillage, are supported by
volunteers who spend their free time maintaining the communities they love.
But, paradoxically, the companies are also profiting from the work those
volunteers put into the communities. Under the Fair Labor Standards Act,
does that mean that the volunteers should be reimbursed for their efforts?

“Clarifying the relationship is going to be key: Is maintaining a
community ‘labor,’ or is it, in fact, part of why people become customers
and something that they enjoy?” asks Gail Williams, executive director of
the online community the
Well,
which helped pioneer the volunteer model (and which Salon acquired last week). “It’s way too early to know what will happen — but I do know everyone will be watching and paying attention.”

More than 10,000 volunteers currently serve time in the community leader program
of America Online. These volunteers spend four hours a week, often far more, in a wide variety of roles: monitoring chat rooms, hosting bulletin
board discussions, helping kids with homework, offering technical advice.
In return, the volunteers get a free America Online account and access to
special community leader forums.

Hosts have to go through an extensive training program, in which they are
instructed in the ways of the ubiquitous TOS (or “Terms of Service”
agreement). All volunteers are roughly grouped under the term “community
leader,” but they take on varied roles and titles: There are, for example, hosts,
guides, rangers, librarians, forum managers and team leaders, not to
mention instructors and administrative coordinators. Volunteers help run
and manage the program, train new volunteers and maintain administrative
paperwork. Coordinating the whole system is ACI, an AOL subsidiary whose
sole function seems to be to run the community leader program. It’s a
confusing tangle of hierarchies and acronyms that only a dedicated AOL
follower can understand.

Former volunteers have a range of complaints about the volunteer program,
most of which involve the feeling that they were mistreated by AOL. Some
complain about having been summarily removed from AOL when they criticized the
system; others protest that they were forced to follow draconian rules and href="http://www.freenet.tlh.fl.us/~wolfj/FCLO/AOLNDA.html"
target="new">non-disclosure agreements. Explains Kelly Hallissey, a
mother of four and former AOL community leader who calls herself the
“ringleader” of the Observers.net community, “How AOL treats their
volunteers is not how you treat volunteers: You can’t shove a gazillion
rules down their throat, then yell at them and fire them when they
disagree.”

One former AOL employee who helped coordinate community programs backs up
that description. “I disagreed with the fact that [the community leaders] were unpaid
volunteers, the way they were treated, the rules,” she says. “For example,
if you disagree, keep it to yourself, because if you disagree publicly we
will fire you. If you didn’t work a certain number of hours, you’d get
fired. How can you fire a volunteer? Firing meant canceling their account,
locking them out of the system and branding them a security risk.” (Many
current and former AOL employees and volunteers asked to be quoted
anonymously, for fear of losing their community leader status or having
their AOL accounts canceled. Many expressed fear of being banned from
the system for life as a “security risk.”)

These complaints, and many others, led a number of Observers.net members last September to send investigation requests to the Department of Labor last September, subsequently submitting documents supporting their complaints. The Department of
Labor, however, is specifically interested in the question of whether volunteers were working as employees. The href="http://www4.law.cornell.edu/uscode/29/ch8.html" target="new">Fair
Labor Standards Act requires that workers should be fairly recompensed
if their work is deemed critical to the company’s bottom line. According to
Observers.net, the Department of Labor is now href="http://www.observers.net/dol.html" target="new">asking
the former volunteers to submit evidence showing that at AOL “volunteers’
work is similar to or the same as the work done by paid employees”; and
that “volunteers’ work is advertised as and/or otherwise considered
integral to AOL’s business.” (A spokesman for the Department of Labor said
he couldn’t confirm or deny an investigation.)

In response, the volunteers insist they are doing the same work that
AOL and ACI employees are doing — that, like AOL employees, they are
running communities, training new employees, doing reams of paperwork,
answering AOL members’ technical questions and even, in the past, creating
AOL pages using the service’s proprietary Rainman software, but not getting
proper recognition for it from AOL. Many, in fact, feel that their work is utterly
critical to the community areas on AOL, and therefore to AOL’s success.

“Considering the amount of work many of us put in weekly, and seeing as how
AOL would crash and burn without us, I don’t think it’s right that their
service is mainly handled by us ‘volunteers,’” complains one current
volunteer, who says she would love to be paid for her work.

But while AOL agrees that many of its members find a big community “really
important,” the company also denies that the volunteers are that
critical to developing the communities. According to AOL spokeswoman Ann Brackbill, the volunteers don’t build the
communities, they simply emerge out of them. “It’s less about whether
[volunteerism] is critical or not critical, but is it organic to the Net
and will it just happen. We think natural leaders who participate arise in
both the online world or the offline world.”

They also deny that volunteers’ duties overlap in any way with the work of
paid staffers — a critical point for any Department of Labor
investigation. Says Brackbill, “We have a group of paid employees who
coordinate the activities but they are not ‘community leaders’ — their jobs
are much larger in scope than the duties a community leader performs.”

Brackbill confirms that AOL is speaking with the Department of Labor, but
won’t elaborate on either the claims of Observers.net volunteers or about
the potential investigation except to point out that it isn’t a formal
investigation yet.

(America Online has been legally challenged on its use of volunteers in the
past. According to an article in Legal Times from November 1995, two
volunteers filed court complaints against AOL demanding back wages for the
time they spent managing its games community; both also complained that
they were summarily fired for disagreeing with management. Both plaintiffs
were offered settlements by AOL. One plaintiff won a small claims court
awards of $562 in damages for “back wages” based on his lost hours of
free AOL time. According to the Legal Times articles, other volunteers also asked the Department of Labor to look into the community leader system at that
time.)

Do the volunteers have a chance of winning this dispute? Answers from labor
law experts are across the map, but most say that this is uncharted
territory. As Alan Hyde, law professor at Rutgers University and labor law
expert, explains, “This is the first time I’ve ever heard of a volunteer
working for a company, assisting their profit-making ventures for free.
It’s mind-boggling. And I have absolutely no idea how that would be handled under
the law.” He ponders, “If people do it, and know that they are doing it, I
don’t know why it ought to be illegal. If they are unhappy with the
situation they should leave.”

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But, as Hyde agrees, this is a question that strikes at the heart of the
online world. Community is one of the biggest buzzwords in the Internet business, with
nearly every site trying to incorporate some kind of bulletin board or chat
room. Many of the biggest Web companies call themselves communities — like href="http://www.salonmagazine.com/21st/feature/1999/01/cov_19feature.html">GeoCities or Tripod. And nearly every community system is staffed in part
by volunteers, who dedicate their time and maintain the connections that
that community members have forged. Many of these companies simply couldn’t
grow their communities without volunteers helping direct the chaos of
online discussions.

Some of the strongest communities on the Net, in fact, tout the opportunity
to contribute significantly as a draw for their members. The Well, for
example, was built on the backs of the hundreds of volunteers who host conference areas. “It was crucial to the Well,” explains Williams.
“Our model is, ‘Everyone brings something to the picnic.’ The opportunity to
create something together with people you care about is not the bath water,
it’s the baby.”

Likewise, nonprofit communities like target="new">SeniorNet couldn’t possibly exist without their volunteer
moderators. “Most nonprofits rely on volunteers. We’re just grateful for
whatever people can do,” says Marcie Schwarz, director of education at
SeniorNet. But, she adds, “It is a different situation when it’s a public
company. It’s unusual for people to volunteer for a profit organization.”

There are also companies, such as target="new">MiningCo.com, which have carefully avoided the volunteer
system altogether. MiningCo.com has over 690 “guides” who run its
specialty sites, bulletin boards and chat rooms, in return for 30 percent of
revenues for their section; the top guides are making up to $11,000 a month, says
CEO Scott Kurnit. As he puts it, “The best workers are entrepreneurs –
someone who really has a stake in the business and cares about what they
are doing. The 10th best worker is a volunteer — you can’t make them do
what you want to do, and they often tire of the task.”

What does possess people to volunteer their time — according to some AOL
volunteers, up to 50 or 60 hours a week — for a big, profitable and public
company? In the early days of the community leader program, before AOL had
a flat-rate pricing model, the answer was financial: A free account could
be worth hundreds of dollars of connect-time charges a month. But the
financial incentive flew out the window with the new $19.95-a-month pricing
plan. Today, the answer most volunteers give is that they don’t offer
their time for AOL; they do it for their specific communities.

“I volunteer on AOL because of the people I’ve met along the way. When your
offline life is difficult, and the people surrounding you don’t seem to
care, AOL is very appealing in the sense that most people feel the same
way,” explains one current volunteer who works in the Teen section, among
others. “Once you become a community leader, you become attached to the
people you work with, even if you don’t care for the company itself.”

Or, in the words of a former AOL volunteer: “We did it to reduce our bills,
to give back to a community from which so many of us had gained so much,
and because we simply loved what we did. There was a real team spirit and a
feeling that one was truly appreciated and valued.”

The volunteers may feel good about giving their time, but the for-profit
online communities — particularly the public companies like AOL, GeoCities
or iVillage, which command high market valuations thanks at least in part to their devoted members — are clearly profiting from those volunteers’ services. The conundrum is that
it would simply be too costly to try to pay dozens, hundreds or even
thousands of volunteers for their time. Under traditional labor law
standards, the issue of whether volunteers are performing vital company
tasks becomes murky.

Not surprisingly, these community companies are touchy about the news of
a potential Department of Labor investigation of AOL. The
women’s site iVillage,
for example, which went public recently, has over 1,000 community volunteers. In a carefully worded
statement, the company stated that “iVillage.com community leaders are
true volunteers and not employees. Our community leaders typify the
organic, member-driven nature that drives Internet community development in
general … Volunteerism is one of the central attributes of the Internet.
Our hope is that the Internet’s participatory nature is not what’s at issue
here.”

Several of the community site leaders and law labor experts I spoke with
wondered whether the unhappiness of the volunteers at AOL
was even a Department of Labor problem. After all, several noted,
volunteers always had the choice to quit volunteering if they were unhappy
with the system. And it’s also quite possible that the problem isn’t volunteerism or community leaders in general, but specifically AOL’s attitude toward community.

AOL’s Brackbill says that AOL puts an emphasis on community,
but most of the AOL habituis I spoke with disagreed. Many
point to the flat-rate system as the downfall of community on AOL. Explains
the former AOL employee: “AOL has done a turnaround on their attitude
towards volunteers. At one point a volunteer was a person who kept people
online talking — and as long as they were online, all their friends were
online too. When it was per-hour rates, people could spend $2,000 a month
easily. When they turned it to an ad model, with flat-rate pricing,
volunteers became a liability. Every person online is a modem someone can’t
use.”

Others, like “Moozie,” agree: “With a flat rate, AOL had so
many more people coming online that they didn’t have to woo people to stay
there. People were replaceable. So what if someone’s account got terminated
or they weren’t happy with the system? A newbie would sign on; there was
always someone there to take their place.”

The issue of how AOL treats its community and hosts is also affecting
its new acquisition Netscape, where the community bulletin boards recently had their href="http://www.salonmagazine.com/tech/feature/1999/04/06/netcenter/index.html"
>doors closed and their paid community hosts dismissed. Some of the
hosts suspect that AOL will replace the boards with chat rooms and unpaid
volunteers because they are cheaper to maintain.

What will happen next in the Department of Labor case? The labor law
experts agree that it’s impossible to say. As Jim Nelson, a labor
lawyer in San Diego explains, “The time track is infinite here. They could
start a formal investigation tomorrow; or they could decide it isn’t worth
pursuing, or there’s not enough evidence, and it will just die and you’ll
never hear that there was even an investigation.” But if AOL is ultimately found to be
at fault, the company would not only be forced to pay compensatory wages to
potentially thousands of volunteers but also back taxes on their wages to
the IRS — not a cheap endeavor.

A decision like that could have potentially huge ramifications on how AOL,
and other Internet companies, deal with their communities and volunteers in the
future. But the volunteers who are talking to the Department of Labor think
it’s worth it if it will improve the conditions at AOL. As another former
community leader sighs, “A community driven by squeezing the most out of
its volunteers in as short a time period, with quantity replacing quality
screening and training, and with political persuasion more important than
competence and caring, is not somewhere I wish to be.”

Janelle Brown is a contributing writer for Salon.

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