Research & Insights

By Alek Felstiner, June 7, 2010

Regulating Distributed Work (Part Two: Free Assembly & Collective Action)

In the last post, I looked briefly at the roots of our existing employment and labor law, and why employment classification presents such a tricky issue in crowd work. For individual workers, being classified a statutory employee is the main hurdle. Once you’re “covered” by a particular law, you’re entitled to its protections unless the law gives employers a way out (e.g. if a business is too small to meet the size requirement).

But employment law does more than entitle individuals to particular benefits – it also protects them when they act together. The individual right to join together with others is crucial to the ability of individuals to function effectively in groups. Especially where the group is large and, perhaps by virtue of the size, or for some other reason, no individual member has sufficient power to alter his/her situation.

The first and most basic of these rights are the right of free assembly, memorialized in the First Amendment, and the right of free association, which has been read by the courts as a necessary outgrowth of the freedom of speech. Free assembly traditionally refers to peaceful protests or meetings, whereas free association involves joining organizations or associations.

The internet provides a terrific, possibly unmatched platform for free assembly. It’s designed to connect people. Whether it actually lives up to its potential is matter of heated debate among legal scholars, social theorists, and all sorts of other people. But the design, at least, enables forms of free assembly heretofore unimagined. Quite understandably, this represents a threat to governments, large employers, public companies, trade associations—basically any entity whose power relies on the isolation and relative inertia of its constituents. Networked groups of people attempting to bring their collective power to bear often encounter aggressive and dramatic opposition. Most often, we see the drama play out in the IP and free speech arenas, not the online workplace. But that’s not because online work is somehow antithetical to collective action; it’s just that online work hasn’t been around very long.

When workers (online or not) take collective action, they enjoy the some of the same free assembly and associational rights that everyone else has, plus a few other protections and restrictions unique to the employment context. For example, the nature of the employment relationship (as it is legally understood) pretty much precludes any absolute right to free assembly. Employers generally have the authority to decide where a worker must be during worktime, and to prohibit any unauthorized meetings or gatherings. This employer authority flows from the employer’s role as “master” in the traditional “master-servant” construct,* which we Americans inherited from English law and have embraced wholeheartedly. If, for some reason, the master-servant structure does not give employers control over when, where, and how employees can assemble, employers can usually still invoke their property rights regain that control. After all, most employment takes place on the employer’s property.

Of course property rights are notoriously difficult to define in cyberspace. Like employment laws, property laws (apart from those dealing with intangible property) evolved in reference to physical objects and spaces. For twenty years courts have struggled with the proper application of these principles to virtual space, and even so the law remains somewhat murky.

Say a group of workers want to enlist the rest of their colleagues in some cause. If they do so by going onto employer property together, holding up signs, distributing literature, asking for signatures, etc., the employer would have the right to prohibit such solicitation or exclude them on grounds of trespass (except in certain situations protected by the National Labor Relations Act). But what happens if they instead use the company email system, message board, or chat room to accomplish the same task?

In Intel v. Hamidi, an employee (Hamidi) used company email to broadcast his complaints about the employer (Intel). Intel claimed, among other things, that Hamidi’s emails constituted ordinary trespass and trespass to chattel (which is essentially trespass on personal possessions, as opposed to real estate). Intel argued that it owned the email system and the servers through which email traffic would pass, and that use of that system and those servers represented a violation of its property rights. The California Supreme Court agreed, to an extent. It recognized that an email could amount to a trespass to chattel if the owner could show actual or threatened damage to computer hardware or software, or interference with its ordinary and intended operation. But the Court explicitly rejected the idea that software or servers could be considered real property, subject to traditional trespass law. According to Hamidi, there is no such thing as trespass on virtual space.

Fortunately for workers, and unions, the National Labor Relations Act picks up where the First Amendment falls away-at the boundary between public and private property. The NLRA protects workers when they engage in “concerted activity for mutual aid and protection,” basically anywhere. “Concerted activity” basically means activity involving two or more employees, or one employee acting on behalf of others or seeking to enlist the support of others. “Mutual aid and protection” ensures that the purpose of the activity is to to improve wages, working conditions, or some other aspect of employment that affects the group. Usually, what we’re talking about is communications (mass or one-on-one), meetings, petitions, protests, and—in extreme cases—picketing, strikes, or boycotts.

Whether or not the conduct is actually protected by the NLRA will depend on whether crowd workers are “employees” for the purposes of the Act (nobody wants to revisit that thorny question from the last post). And even if they are protected, the traditional concept of unionization might not fit particularly well with crowd labor. For one thing, seniority and job security, two of the central tenets of collective bargaining, won’t have much meaning in a high turnover, “open call” labor market. For another, collective bargaining requires a group of workers sufficiently similar to share a “community of interest,” and the National Labor Relations Board (which administers the NLRA) has, like the rest of the court system, proven fairly hostile to the idea of a legally cognizable community in cyberspace.

In the absence of NLRA protection, I predict that we will still see some familiar forms of collective action emerge, as well as some unique to the crowdsourcing milieu. Turkopticon, which allows AMT Providers to rate and comment on Requesters, offers an excellent example of the kind of collective action that can only really exist in online crowd work. Message boards and social networks are further examples of virtual assembly. I expect that as the market for crowd labor grows, independent gathering places for crowd workers will grow in size and organizing capacity.

Crowd workers may follow the example of writers, graphic artists, and other groups generally neglected by organized labor, by establishing a membership-based organization to promote their interests. A crowd worker association could lobby on behalf of crowd workers, attempt to establish group benefits, handle disputes, inform crowd workers of their legal rights, and serve as a clearinghouse for campaign activities. Such organizations tend not to follow the traditional union model, instead tailoring themselves to the specific dynamics of their industry. Crowdsourcing would seem ideally suited for an industry-specific worker association.

Some crowd workers will probably go one step further, taking direct action to raise their compensation and change their employment terms. We know how much networked communities depend on the presence and contribution of the crowd. Crowd workers could withhold labor from untrustworthy employers, adopt voluntary restrictions (such as a blanket refusal to perform tasks below a certain wage level), or create worker associations to provide training and “accredit” responsible employers. I also anticipate some version of the “work to rule” strategy, in which employees attempt to hobble an otherwise smoothly functioning system by ignoring the way things actually run and instead adhering rigidly to the rules.

When faced with an organized group that already communicates primarily online, crowdsourcing vendors might prove more responsive than we might expect.

*More on masters and servants here.