Professor Miriam Cherry’s scholarship is interdisciplinary and focuses on the intersection of technology and globalization with business, contract, and employment law topics. In her recent work, Professor Cherry analyzes crowdfunding, markets for corporate social responsibility, virtual work, and social entrepreneurship. Professor Cherry’s articles will appear or have appeared in the Northwestern Law Review, Minnesota Law Review,Washington Law Review, Illinois Law Review, Georgia Law Review,Alabama Law Review, Maryland Law Review, and the Tulane Law Review, among others.
A Minimum Wage for Crowdwork?
In 2013, workers on the crowdsourcing website Crowdflower brought a lawsuit in federal district court, alleging that they were owed minimum wage under the Fair Labor Standards Act (FLSA). That case, Otey v. Crowdflower, ultimately settled in 2014 in the workers’ favor and the lawsuit was dismissed. As a result of the dismissal, however, the federal district court never ruled on the merits of the legal questions underlying the lawsuit. As a result, many of the policy questions about minimum wage and crowdwork have continued to be unresolved legally.
When Congress passed the FLSA in 1937 to help relieve the downward spiral of wages in the Great Depression, America’s workers commonly showed up to an employer’s place of business, leaving little doubt if they were “working” and thus entitled to the statute’s minimum wage. Times, and technologies, have changed. With modern computers, individuals often perform work on someone else’s behalf while sitting at home, using not their employer’s factory machinery but rather a computer they purchased for themselves, as well as their own internet connection. The work is often engaging and is far safer than operating the machinery in a1930s factory. At times, some of this online labor can feel creative, or even be part of a game or a competition.
The FLSA was not written with crowdwork in mind, but it as the United States finds itself mired in another economic crisis, there is a strong argument to be made that the economic and equitable purposes of the FLSA are best served by ensuring that the statute is construed broadly so that cyberworkers, clickworkers – the new virtual workers – receive the federal minimum wage. With advances in technology key to continued economic growth and stability, these questions demand serious consideration. I argue that the FLSA could have a positive application to worker’s rights in cyberspace and in virtual worlds. In some regards, such as with globalization and outsourcing, virtual work will only accelerate existing trends, and in doing so will force us to confront difficult questions about labor across borders. Instead of presenting a race to the bottom that will eviscerate many legal rights, some intervention of background standards might be used to change the vicissitudes of the unregulated market and the race to the bottom into a situation that helps to increase efficiency – without worker exploitation. The protection provided by minimum wage laws should be available for de-skilled work whether or not physical presence is required. I also argue that implementing voluntary “best practices” standards for virtual work could assist in the development of crowdworking in a positive ethical direction.