Working for (Virtually) Minimum Wage: Applying the Fair Labor Standards Act in Cyberspace
Miriam A. Cherry
Saint Louis University - School of Law
November 4, 2009
Alabama Law Review, Vol. 60, No. 5, pp. 1077-1110, 2009
As more work enters cyberspace, takes place in virtual worlds, and collapses traditional nation-state barriers, we are entering a new era of “virtual work.” In this article, I use “virtual work” as an umbrella term to encompass work in virtual worlds, crowdsourcing, clickworking, even sweeping in, to some degree, the commonplace telecommuting and “mobile executives” that have become ubiquitous over the past decade.Are such new forms of “work” entitled to the minimum payment standards mandated under the FLSA? As the United States enters another economic crisis, and with advances in technology key to continued economic growth and stability, these questions demand serious consideration. The FLSA now faces a variety of new scenarios created by work in cyberspace, and there is a strong case that the economic and equitable purposes of the FLSA are best served by ensuring that the statute is construed broadly so that cyberworkers, clickworkers, and virtual workers receive the federal minimum wage.
The advent of virtual work simultaneously provides immense promise and peril for workers in the new digital economy. New technology allowing collaboration can provide remarkable opportunities for workers and employers alike. Traditional limitations on collaboration - of travel, of meeting, of commuting - can be minimized or reduced. Employers can use virtual spaces to make contacts and recruit talent, without spending money on transportation. Simultaneously, virtual work presents many of the same enduring problems and "races to the bottom" that workers’ rights advocates have struggled with over the years.
This Article begins, in Part One, with a brief background discussion of labor markets in cyberspace. The discussion here contains an in-depth description of the process of pounding the virtual pavement - looking for work in cyberspace - for the purpose of showing the special employment challenges in this context and thus why such work warrants the protection of the FLSA. With that background, Part Two discusses the application of the FLSA to work in virtual worlds, crowdsourcing, and clickworking. Finally, Part Three makes the argument that the purposes of the FLSA are best achieved by ensuring their application to virtual work in the United States. Finally, the conclusion offers some thoughts about the broader applications of this argument and some possibilities for further thought and study, to be developed in future work.
Number of Pages in PDF File: 34
Keywords: virtual work, crowdsourcing, clickworking, FLSA, Fair Labor Standards Act, minimum wage
Date posted: November 4, 2009