{"id":2127,"date":"2013-11-12T17:47:28","date_gmt":"2013-11-12T17:47:28","guid":{"rendered":"http:\/\/ncjolt.org\/?p=2127"},"modified":"2020-06-04T20:53:58","modified_gmt":"2020-06-04T20:53:58","slug":"yelp-customer-reviewers-sue-to-be-paid-like-regular-employees","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/yelp-customer-reviewers-sue-to-be-paid-like-regular-employees\/","title":{"rendered":"Yelp Customer Reviewers Sue to be Paid like Regular Employees"},"content":{"rendered":"

Tuesday, November 12, 2013, by Ryan Niland
\nA group of customer reviewers (or \u201cYelpers\u201d) from the popular crowdsourcing website Yelp has filed a class-action lawsuit<\/a> seeking to be paid as employees of the company.\u00a0 The lawsuit<\/a>, which Yelp characterizes as frivolous<\/a>, alleges that Yelp violates state and federal law by paying certain writers within the company while encouraging external customer reviewers to work for \u201cliquor, food, badges, trinkets, and titles.\u201d\u00a0 In addition to violating federal labor laws, the Yelpers claim that Yelp has been unjustly enriched<\/a> at the expense of its reviewers and should be liable for quantum meruit<\/a>.
\nThe Yelpers\u2019 primary allegations relate to the federal Fair Labor Standards Act<\/a> (\u201cFLSA\u201d), a New Deal-era law that, among other things, imposes a minimum wage<\/a>, requires employers to pay extra wages for overtime<\/a> hours, and prohibits child labor. \u00a0The FLSA\u2019s requirements apply to \u201cemployment relationships<\/a>,\u201d but the statute itself provides little guidance regarding how to distinguish between employment relationships and contractual relationships.
\nCourts applying different bodies of law have developed different tests<\/a> to distinguish between employment relationships and other types of relationships, such as those between independent contractors.\u00a0 Common law courts applied a \u201cdirect and control\u201d test to determine when employers could be held liable for torts committed by persons acting on the company\u2019s behalf.\u00a0 Under the direct and control test<\/a>, an employment relationship exists when a company has authority to tell a person when, where, and how to do a particular job.\u00a0 By contrast, courts seeking to define employment relationships for FLSA purposes have applied an \u201ceconomic realities\u201d test<\/a> that considers multiple factors<\/a> to assess the relationship between the company\u2019s business and the type of work the individual performs.
\nBy these standards, the Yelpers\u2019 complaint<\/a> appears to fit the common law test for employment relationships more than the FLSA test.\u00a0 Although the Yelpers assert that Yelp could not generate $220 million in annual revenues without the assistance of its consumer reviewers, the bulk of the complaint is devoted to exploring the various ways in which Yelp exercises control over the Yelpers\u2019 activities.\u00a0 The complaint even explicitly cites the \u201cright to control test,\u201d alleging that Yelp pressures reviewers to alter their reviews and \u201cfires\u201d reviewers as it sees fit.<\/p>\n

[T]he complaint describes Yelp as a “slave ship with pirates banging the drum to keep up the fast pace,” a system with “overhead that would shame an antebellum planation,” and a “cult” that offers members alcohol instead of Kool-Aid.<\/p><\/blockquote>\n

The Yelpers devote only a few paragraphs of their complaint to a \u201crelative nature of the business\u201d test\u2014which the complaint dismisses as \u201csecondary\u201d\u2014but the complaint<\/a> pulls no punches in emphasizing the degree of control the company exercises over their activities.\u00a0 The complaint characterizes the Yelpers as a \u201cvulnerable and disposable class of workers\u201d responding to a \u201csystem of cult-like rewards and disciplines\u201d designed to compel their participation.\u00a0 At various points, the complaint describes Yelp as a \u201cslave ship with pirates banging the drum to keep up the fast pace,\u201d a system with \u201coverhead that would shame an antebellum planation,\u201d and a cult that offers reviewers alcohol instead of Kool-Aid.
\nThe Yelpers\u2019 equating voluntary restaurant reviews with slavery has drawn justified criticism<\/a> from popular news sources.\u00a0 But regardless of the merits of the reviewers\u2019 case, the lawsuit appears to be part of a growing trend of challenges against the use of \u201cvolunteers,\u201d \u201cinterns,\u201d and other types of unpaid participants in revenue-generating enterprises.\u00a0\u00a0 For example, individual and class action lawsuits have been used in the last few years to challenge unpaid \u201ceducational\u201d internships<\/a> in the for-profit film industry and the non-payment of student athletes<\/a> in (nominally) non-profit college sports programs.
\nYelp\u2019s methods of soliciting reviews for its website are by no means unique; Amazon.com\u2019s secretive Amazon Vine<\/a>\u00a0program also sends participants free merchandise and uses a complicated ratings system to encourage them to write reviews frequently.\u00a0 And as the success of websites like Amazon, Yelp and TripAdvisor indicates, online customer reviews have become big business<\/a>.\u00a0 If successful, the Yelpers\u2019 suit could have far-reaching implications for the online review industry\u2019s long-term viability.<\/p>\n","protected":false},"excerpt":{"rendered":"

Tuesday, November 12, 2013, by Ryan Niland A group of customer reviewers (or \u201cYelpers\u201d) from the popular crowdsourcing website Yelp has filed a class-action lawsuit seeking to be paid as employees of the company.\u00a0 The lawsuit, which Yelp characterizes as frivolous, alleges that Yelp violates state and federal law by paying certain writers within the …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/2127"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=2127"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/2127\/revisions"}],"predecessor-version":[{"id":7543,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/2127\/revisions\/7543"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=2127"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=2127"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=2127"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}