The FLSA does not expressly contemplate unpaid volunteer work. And, as we have previously noted, the DOL accepts the non-payment of “interns” only when certain constraints are met. From time to time, providers of online content to web sites, whether paid or unpaid, bring claims that the form of payment provided to them (or the complete lack thereof) violates the FLSA. Levinson v. About.com Inc., 2010 U.S. Dist. LEXIS 108922 (S.D.N.Y. Oct. 7, 2010)(addressing settlement of wage-and-hour class action brought by “guides” for about.com web pages). In a new decision, one Manhattan federal judge has rejected claims brought by three former bloggers for the popular website www.huffingtonpost.com that they were entitled to “assert a claim of unjust enrichment arising from the alleged failure of the defendants to compensate the plaintiffs adequately for adding value to, and thus boosting the purchase price of, The Huffington Post.” Tasini, et al. v. AOL, Inc., et al., S.D.N.Y., No. 11-cv-2472, 03/30/12.
Planitiffs in Tasini did not pursue statutory claims under the FLSA or New York law, rather, they alleged that the Huffington Post engaged in “deceptive business practice” under NY Gen Bus § 349, or, in the alternative, that they were entitled to recover in equity for services rendered. As to the latter claim, the Court, District Judge John G. Koeltl, observed that “Courts applying New York law require a plaintiff to allege some expectation of compensation that was denied in order to demonstrate that equity requires restitution.” Because the Plaintiffs understood the terms of the relationship with the Huffington Post, they could not so allege. As concerned the statutory claim, the Court rejected plaintiffs’ position that they were “consumers” entitled to the protection of the consumer protection law.
Tasini, while a victory for the employer, demonstrates the litigation risks associated with unpaid labor, the terms of which must always be analyzed for compliance with federal and state law.