There is a strong case to be made that the answer is yes.
New York law uses five factors to determine if someone is an employee:
- the degree of control exercised by the employer over the workers
- the workers’ opportunity for profit or loss and their investment in the business
- the degree of skill and independent initiative required to perform the work
- the permanence or duration of the working relationship
- the extent to which the work is an integral part of the employer’s business.
The objective is to determine “whether, as a matter of economic reality, the workers depend upon someone else’s business for the opportunity to render service or are in business for themselves.” 1Not all factors have to be satisfied in order for the worker to be considered an employee.
Degree of Control Exercised
SE has numerous policies moderators are expected to follow, and SE can and has removed moderators that do not follow these policies.Inactive moderators are demoted.
Profit, Loss, and Investment
Moderators are not paid, but SE profits from their work. Investments made by moderators in order to moderate are de minimis.
Skill and Independent Initiative
Moderation is a skill, but moderators are limited to specific sites and their work is directed via queues.
Permanence of Relationship
Moderatorship is for indefinite duration, sometimes described as “for life”.
Integral Part of Business
SE depends on moderators for answer quality.
LAB § 652 applies to “any individual employed or permitted to work by an employer in any occupation “2, where occupation is defined as” an industry, trade, business or class of work in which employees are gainfully employed. ” Since paid moderators exist, moderation is an occupation for the purposes of the minimum wage.
1: Brock v. Superior Care, Inc., 840 F.2d at 1059.
2: With millions of inapplicable exceptions. Note that a nonprofit educational organization is one of those exceptions, but SE is not nonprofit.
GIPHY App Key not set. Please check settings