Here’s a question for the lawyers out there… *
In the olde days, customer service in virtual worlds was performed by volunteers. In return for a free account, you had super powers in the virtual world which you used to sort out complaints from your fellow players. This is how it was for many years, and things seemed to work.
Then, in 2000, as a result of a successful class action lawsuit brought against AOL by its unpaid volunteer moderators, things changed. A bunch of Ultima Online players were inspired to bring an action against Electronic Arts, claiming that they too should be paid at least the minimum wage for their time spent servicing customers. This contemporary article describes the then state of affairs.
As a result of this lawsuit, virtual worlds stopped their volunteer programmes almost overnight. Nowadays, customer service staff are paid for their time (not that this stops them from burning out and leaving after 2 years).
So, the question: how come virtual worlds in beta test with 20,000 or more volunteers performing directed, unpaid work (often to schedules) can’t also claim minimum wages under the Fair Labor Standards Act?
Richard
* I am not asking your professional opinion, so don’t send me a bill if you answer – you’re “volunteering” it.
Great question. This is something I've been wondering about as well. The amount of unpaid/hidden labor to keep game worlds going (be it through beta testers or in-game helpers) is pretty notable I think. I'd also be curious to hear about the legal aspects but aside that angle it goes to the heart of the question about the status of culture in game worlds and the real value of player contributions.
Posted by: T.L. | Nov 22, 2003 at 09:23
Oooh, this is a good shades of gray question. So if I recall, there were a number of Fair Labor Standards Act criteria which needed to be met in order to constitute employment. The most notable were: regularly scheduled shifts, performance reviews/formal evaluation of performance and the presence of paid laborers with essentially the same job description.
Many beta TOS will have a clause about “player not being an employee” but if the above criteria are still in place, I think you might have a FLSA claim, although probably a weak one.
One question re: other situations – if some sort of explicit remuneration is made available to beta testers in lieu of cash payment (e.g. a discount off your first month subscription) does this get developers off the hook or does it increase the strength of an FLSA claim because you now can say this was clearly a compensated position that did not meet minimum wage requirements?
Virtual world developers constantly walk this volunteer/employee line with regards to newbie mentors and other community roles.
Posted by: hunter walk | Nov 22, 2003 at 15:08
Though the lawsuits seem to be unique, this is not a unique situation in online social activity - think of Slashdot users and the random draft into moderation mode, or Metafilterites and their painful deliberations on all manners of appropriateness and gentle goading of those on the periphery of acceptable behaviour. Or the giant FAQs, ettiquette guides and moderation of (some) Usenet groups, and same for IRC.
All these have coherence of community as a goal (perhaps among other things). I wonder if the distinction is the formality of the role vis a vis the FLSA and the fact that they are pay services.
Posted by: Stewart Butterfield | Nov 22, 2003 at 15:56
I am researching for an article about open source gaming, and this seems to be another advantage. Or at least, another difference. You don't have worry about paying anyone for anything in an open source developed project. The payoff is the involvement itself.
Posted by: B. Smith | Nov 22, 2003 at 16:39
Hunter Walk>The most notable were: regularly scheduled shifts, performance reviews/formal evaluation of performance and the presence of paid laborers with essentially the same job description.
Hmm, does this mean that if a virtual world were to have volunteer CS reps who didn't have a regularly scheduled shift, that would mean the law didn't apply?
>some sort of explicit remuneration is made available to beta testers in lieu of cash payment (e.g. a discount off your first month subscription) does this get developers off the hook or does it increase the strength of an FLSA claim because you now can say this was clearly a compensated position that did not meet minimum wage requirements?
That's an interesting question. In the olde days, developers gave volunteers free accounts as a thank you for their efforts. It would be ironic indeed if the only way people were able to volunteer their services for free would be if they had to pay for them.
Richard
Posted by: Richard Bartle | Nov 23, 2003 at 13:44
"That's an interesting question. In the olde days, developers gave volunteers free accounts as a thank you for their efforts. It would be ironic indeed if the only way people were able to volunteer their services for free would be if they had to pay for them."
From what little I understand, that is exactly how things fell apart in UO:
1) Counselorship program was created. One would volunteer the time. You'd pay for your account. There were no fixed hours or reporting.
2) Someone had the good idea of rewarding these people, some of whom spent more time counselling than playing, with free accounts.
3) Someone noted they were getting free accounts, so should thus prove that they are doing enough to justify this. Schedules were created & reports required.
The problem, IMO, of giving renumeration as a thank you for volunteer work, is not that it'll be used against you in a FLSA lawsuit. Rather, it is that it is only a matter of time until an accountant notes this "expenditure" and demands systems are put in place to ensure the volunteers work hard enough to earn it. This is what will throw you fully in violation of the FLSA requirements.
What happened to the volunteer programs is what I foresee happening to EULAs. The companies took a good thing, got greedy, abused it with no restraint, and eventually government regulation stepped in.
- Brask Mumei
Posted by: Brask Mumei | Nov 23, 2003 at 16:52
#include obligatory IANAL reference
The big difference with the beta test issue comes down to the "persons acting in their own interest" exception to volunteer status. Most people do not volunteer for beta programs to perform QA work for free, they do it just to play the game for free, or to get an advance look at something the paying public won't see for a while. When a person acting in their own interest does something of benefit to a business, the "volunteer" question doesn't get raised.
That doesn't get the companies off the hook entirely, there are other tests involved like those involving scheduled hours, degree of oversight, provision of tools, doing work that others are paid to do, etc. But almost none of those is met in the case of Beta's, either.
The volunteer programs ran into trouble because the companies were relying on them for first-response customer service. As a result, they had to put them on schedules, hold them to codes of conduct, actively supervise them, and so on. At the same time, people with nearly identical duties and requirements were being paid.
But that wasn't really what caused the problem. What caused the problem was that the volunteers were being expected to enforce policies that made no sense to them, and they were never given an explanation. You can do that to employees, because they'll cash their checks and do their jobs. You can't do that to volunteers.
--Dave
Posted by: Dave Rickey | Nov 23, 2003 at 17:02
Brask: "Rather, it is that it is only a matter of time until an accountant notes this "expenditure" and demands systems are put in place to ensure the volunteers work hard enough to earn it."
It really didn't have much to do with the accountants. It had more to do with the fact that few would volunteer to work during peak hours, so those that did would get over-loaded, so fewer would, and so on. And a few would get burned out, and say or do stupid things with their extra powers, or volunteer just to get and abuse the powers. So strict schedules and standards had to be put in place. And then, there you are: Treating volunteers like employees.
--Dave
Posted by: Dave Rickey | Nov 23, 2003 at 17:13
From what I know, Meridian 59 had player volunteers previous to UO's launch. Players had special accounts with additional powers and were given a free mortal account as a "thank you". The first volunteers were primarily front-line CS, but eventually volunteers to run in-game events were also brought on. FWIW, M59 currently does not use player volunteers because the issue is too thorny for us as a small company.
Actually, I think the problems probably had to do more with management than accounting. If you give someone special powers you want a measure of accountability. People who are readily identifiable as volunteers also take on the role of "game representative". If you have a volunteer abusing his position for it's power (or the free account), but not putting any effort into the game, you want a process to review and terminate them. Unfortunately, this also sounds like one of the tests for employment.
I think one thing you can do is start putting systems in place for players that truly want to volunteer. A common example is a newbie channel that elder players can opt to listen into. They can give newbies advice on how to get through some common problems. No need for special clothes or account priviledges, just let people that want to help do so on their mortal characters.
My thoughts,
Posted by: Brian 'Psychochild' Green | Nov 25, 2003 at 18:14
Richard - There is also the issue of unionization - in 2002, the US Court of Appeals upheld a NLRB decision which ordered that the volunteer auxiliary choristers working for the Seattle Opera Company are employees and can be unionized. They are represented by the American Guild of Musical Artists. They received an honorarium, later called a transportation allowance by the Opera in an attempt to get out of the "compensation" trap, but the court held that it was actually compensation since it was paid even if the chorister walked to the Opera.
The choristers were subject to an extensive degree of control by the Opera, including the requirement to attend rehearsals on time, follow musical and dramatic direction while on stage etc.
In terms of how all this relates to beta testers - I think using the Opera analogy, they would be more like a focus group audience which received free tickets to an advance performance, but not like the choristers. I doubt that a focus group would ever be considered as employees. However, if they were required to attend every rehearsal, and received compensation to boot, maybe they would.
Remember, it's not over until the fat lady sings!
Posted by: Peter S. Jenkins | Nov 25, 2003 at 23:55
In regards to the two afore mentioned lawsuits.
They are still in court and have not been resolved.
Until they are resolved it is still uncertain that those volunteers could be considered "employees".
Yet on the side of legal prudence, all US MMOPG ceased their volunteer programs.
These programs to my knowledge are still in place in the EU and Asia.
If the plaintiffs in the two cases lose, you may see a return to the "old days"
As for accountants wanting to tabulate expenditures, most likely they would have passed on the issue. Cost/benefit rule. The cost of tracking the expenditure can not exceed the benefit. As there is no benefit in tracking time of volunteers, and the cost of complaince is absurdly high they would have tried not to track the time/expenditure and just treat it as a write off.
Yet HR, may have wanted the numbers to justify adding staff to Customer Service
Posted by: Peter | Nov 29, 2003 at 11:58
Indeed, I am one of the volunteers named in the class-action lawsuit and it seems to be still ongoing, although I have heard nothing from the lawyers since last June.
If anyone reading this knows what's been going on with that case, shoot me an email.
Posted by: Brian P. | Jan 08, 2004 at 16:14
Peter >
>Yet on the side of legal prudence, all US MMOPG ceased their volunteer programs.
>These programs to my knowledge are still in place in the EU and Asia.
There are some exceptions. One is SOE with EverQuest. Their volunteer CS program is still active and always recruiting. Being EverQuest guide program the largest MMOGs volunteer support program in the US, it is an important exception. Why they did not follow EA and Microsoft example is open to debate and it will probably change based on the result of the class-action lawsuit.
About the EU and Asia cases, EA decided to close the European volunteer program and to keep the Asian CS and Content programs. Other European companies (Funcom-Anarchy Online, CCP Eve-Online, Reaktor.com Neocron ,etc.) still have their Volunteer CS program.
The risk I see for European companies (beside the local legislation) is that volunteers located within US are still subject to US labor regulations and could result again in a lawsuit. One solution could be the outsourcing of the CS Support including the volunteer department like what NetDevil did for the Jumpgate CS program (outsourcing it to the Themis Group).
Posted by: Luca 'Khefri' Girardo | Feb 08, 2004 at 06:03
And as always things keep moving. Unconfirmed rumors seems to indicate that SOE is dropping the volunteer CSM (at least in term of ingame queue support) http://www.unknownplayer.com/archive/04/01/22/1655.php
At the same time unconfirmed rumors seems to indicate that the OSI Ex-volunteers lawsuit has been settled out of court for an undisclosed amount.
http://www.waterthread.org/
Anyone having more info ?
Posted by: Luca 'Khefri' Girardo | Feb 22, 2004 at 08:14
I am a player in a MMOPG that I feel could really be enhanced by some volunteer involvement with game development. I know that the expertise is there. Certainly the willingness to volunteer and make the game better benefits all, players and developers.
In reading this post it seems that there are no clear boundries in regard to protecting a developer from lawsuits.
What exactly is allowable for player's to do? Are there steps (such as disclaimers) that the developer can take to protect themselves?
Posted by: Urik | Jul 06, 2005 at 16:20