Virginia Employment Law Blog
The excellent Ask A Manager blog recently responded to a reader question about whether it is legal for publications to not pay their volunteer writers. As always with legal questions, AAM addresses the underlying issues, but avoids offering legal advice. We’ve decided to expand on legal issues here.
As readers of this blog know, the Fair Labor Standards Act guarantees that employees are paid no less than minimum wage for their work. The important language in the FLSA is that an employer must pay for hours that that employer has “suffered or permitted” you to work.
But before we get too far into the weeds: can people write for free for publications? Can they trade their writing for the nebulous compensation of exposure?
The most prominent case on this matter is a weird one. Tasini, et al v. Huffington Post did not come out well for the plaintiffs, but, oddly, the plaintiffs did not sue under wage and hour laws. The Plaintiffs chose to bring their case under the laws of deceptive business practices and unjust enrichment in an attempt to claim one-third of the purchase price of the Huffington Post for its unpaid content providers. That legal theory is novel and the plaintiffs’ lawyers were clearly swinging for the fences, but it didn’t work, and it doesn’t tell us much about whether actual wage laws apply to unpaid content providers.
According the law and guidance from the Department of Labor, however, this is actually an incredibly straightforward issue. You simply can’t volunteer for a for-profit entity.
You can volunteer for a nonprofit under particular circumstances. A for-profit entity, on the other hand, simply cannot have volunteers, whether those volunteers are content providers, administrative support, or unpaid interns, as some of you may be. This law is the reason that unpaid internships are becoming liability traps for companies across the country.
The distinction between hours worked and hours ‘suffered or permitted’ becomes important, especially in jobs like writing, when an employer might not know how long a task took you to complete. As mentioned above, writing is a bit different from many other forms of work. If you just upload content without oversight or direction, it’s hard to make the case that the publication, in the words of the statute, suffered or permitted you to work those hours. It’s just something you did. Presumably, you don’t have an exclusive arrangement with a particular site and you could have posted your column anywhere. It wouldn’t be reasonable to insist that the site where you post your column has to pay you for the work of producing it if you wrote it unprompted.
Conversely, whether or not you are being paid, if a site is assigning you work, giving you deadlines, expecting you to provide a certain product, or even expecting you to cover a certain beat, then you probably have a job and should be paid. This is especially true if the publication is providing equipment for you. This mostly is not the case when writing for an online publication, but press credentials, for example, could be considered equipment for these purposes.
In general, if you’re working, the law says you need to be paid for your work. Exposure is not payment. No one can stop you from doing unprompted work and posting on a forum, but if your work is at the request of a for-profit entity, that for-profit entity should pay for your time.