Articles

Working the Crowd: Employment and Labor Law in the Crowdsourcing Industry

Alek L. Felstiner, University of California - Berkeley

Abstract

This Article confronts the thorny questions that arise in attempting to apply traditional employment and labor law to “crowdsourcing,” an emerging online labor model unlike any that has existed to this point. Crowdsourcing refers to the process of taking tasks that would normally be delegated to an employee and distributing them to a large pool of online workers, the “crowd,” in the form of an open call.

The Article describes how crowdsourcing works, its advantages and risks, and why workers in particular subsections of the paid crowdsourcing industry may be denied the protection of employment laws without much recourse to vindicate their rights. Taking Amazon's Mechanical Turk platform as a case study, the Article explores the nature of this employ- ment relationship in order to determine the legal status of the “crowd.” The Article also details the complications that might arise in applying existing work laws to crowd labor.

Finally, the Article presents a series of brief recommendations. It encourages legislatures to clarify and expand legal protections for crowdsourced employees, and suggests ways for courts and administrative agencies to pursue the same objective within our existing legal framework. It also offers voluntary “best practices” for firms and venues involved in crowdsourcing, along with examples of how crowd workers might begin to effectively organize and advocate on their own behalf.

The article describes how crowdsourcing works, its advantages and risks, and why particular subsections of the paid crowdsourcing industry expose employees to substandard working conditions without much recourse to the law. Taking Amazon’s “Mechanical Turk” as a case study, it investigates the legal status of the “crowd,” exploring the nature of the employment relationship and the complications that might arise in applying existing work laws. In doing so it draws on employment and labor case law, but also on other areas of internet law in order to illustrate how courts grapple with the migration of regulated activity into unregulated cyberspace.

Finally, the article makes a case for regulatory intervention, based on both the vulnerability of crowd workers and the failure of the law to keep up with the technological developments that drive our information economy. To that end, it presents recommendations for legislatures seeking to expand legal protections for crowdsourced employees, suggestions for how courts and administrative agencies can pursue the same objective within our existing legal framework, voluntary “best practices” for firms and venues involved in crowdsourcing, and examples of how crowd workers might begin to effectively organize and advocate on their own behalf.

Suggested Citation

Alek L. Felstiner. "Working the Crowd: Employment and Labor Law in the Crowdsourcing Industry" Berkeley Journal of Employment and Labor Law 32 (2011): 143.
Available at: http://works.bepress.com/alek_felstiner/1