Human Hotspots at SxSw

It was 32 degrees in Austin, Texas  as SXSW (South by SouthWest) came to an end yesterday.   But the human hotspots at SXSW making the news aren’t the sweaty festival goers wandering from interactive events, to music concerts or film screenings – all a part of the ten day festival.   The Human Hotspots making the news are referred to as Homeless Hotspots.  Marketing firm BBH has created a wireless service for SXSW operated by homeless people.  The company has taken 14 volunteers from a homeless shelter in Austin, provided them with wireless devices, and t-shirts that read:

I’M [FIRST NAME],
A 4G HOTSPOT
SMS HH [FIRST NAME]
TO 25827 FOR ACCESS
www.homelesshotspots.org

The volunteers (13 men and one woman) are standing or walking around at locations near the Austin Convention Centre.  SXSW attendees presumably will see the people and decide to use the service. The charge for the service was a suggested donation of $2.00 for 15 minutes. The money would go directly to the homeless person.  There is no information out yet as to how much usage there was, nor how much each homeless person took in.

Here’s how the project is described on the homelesshotspots website:

Homeless Hotspots is a charitable innovation initiative by BBH New York. It attempts to modernize the Street Newspaper model employed to support homeless populations.

As digital media proliferates, these newspapers face increased pressure. Our hope is to create a modern version of this successful model, offering homeless individuals an opportunity to sell a digital service instead of a material commodity. SxSW Interactive attendees can pay what they like to access 4G networks carried by our homeless collaborators. This service is intended to deliver on the demand for better transit connectivity during the conference.

If you'd like to support Homeless Hotspots from afar, click the button below to donate. All proceeds go directly to Front Steps Homeless shelter.

All proceeds paid for access go directly to the person selling you access. This is a form of income for them.

Stories about this being exploitation of the homeless abound in the media.  Most of what I have read deals with dehumanizing aspect of turning people into hardware.  BBH Labs launched a similar and remarkably successful project in New York called Underheard in New York in which 4 homeless men were given mobile devices and then regularly tweeted about their experience. As a result of that project, one of the participants reconnected with his daughter whom he hadn’t seen in years. The projects certainly appear to have a patina of the charitable.  Laudable and clever.

As all my students know, I tend to rail against the idea of volunteering for a private corporation.  Where a corporation is making a profit by taking the free labour of a human being, it is something akin to slavery. Here BBH isn’t making a profit and the workers are getting paid. But, of course, BBH is a marketing firm and the human hotspots are really more valuable as mobile billboards than they are hotspot salesmen.  And, they were getting paid, so certainly the labour wasn’t free unless no one used the service.  I am not leading edge in the techno world, but I would have thought that most people have smart phones with connections and that the cost of logging onto their own service would be less than or similar to the suggested donation ($0.13/min).  For those people walking around with their ipads and laptops looking for service, maybe it works.  Plus, you have to send a text to get access to the system. My failure to understand the techno end notwithstanding, we can, nevertheless, assume that the volunteers or, more accurately, “workers” were to get paid something so weren’t “volunteers” in the true sense.  Moreover, subsequent to all the media attention BBH has stated that the workers were guaranteed at least $50.00 per day.  (One blog posited that the amount was only $20.)

In the United States the Fair Labor Standards Act requires employers to pay at least the minimum wage, which BBH notes in their blog that they are meeting  because they are guaranteeing $50 for 6 hours. Minimum wage inTexas is $7.25. If that is the case, then is there really much of an employment law issue here? That’s not to say that there aren’t other issues such as the criticism about taking advantage of the homeless and the fact that BBH is getting an enormous amount of publicity out of this (let’s face it they’re a marketing company). But this is not the place or time to take on the amount of value that BBH is getting nor of the exploitation of the homeless. The BBH blog does sets out in its defence that they are looking at ways of helping the homeless, they realize they are being cast as villains in this, but they mean only the best.  For this post, I’m going to focus on the existence of an employment relationship.

Are the people providing this hotspot service employees, volunteers or independent contractors? The fact that the workers are getting paid may take them outside the domain of volunteerism, but what the relationship is must be determined.

One tribunal set out what an employee is in basic terms:

What are those features which go to make up an employee in the usual sense of the term? Someone is interviewed by an employer and hired for a job. He will work for some   period of time and will be paid a fixed wage, computed     hourly, weekly or monthly. He will perform tasks assigned   by the employer and subject to the direction and     supervision of the latter. This work is of benefit to the employer's business or enterprise. For that reason, it is worth the while of the employer to pay for the doing of  it. If the work is performed well, it will be so evaluated     by the employer, and result in the retention or even promotion of the employee. If the work is not performed well, he will be disciplined and perhaps even discharged, again by the employer.

This is too simplistic a description to meet the requirements in law but it is useful. Applying this description to the human hotspots, it’s unlikely they were interviewed; presumably they volunteered –in the very basic sense of that word that they weren’t forced.  But an interview isn’t a legal requirement of an employment contract.  An offer is. There must have been an offer somehow – the workers had to find out about it.  They had to be selected. They did work for a period of time. They weren’t paid a wage (though paying commissions isn’t illegal under the Ontario ESA-- so to say it must be a wage computed hourly, etc. is also not necessary legally).  Was the work to the benefit of BBH?  They’re a marketing firm.  They’ve managed to garner a huge amount of publicity out of the work.  As noted above, if the human hotspots are really billboards or sandwich boards, then very clearly, the work is to the benefit of BBH. The workers performed the tasks assigned.  There’s not enough information known as to whether there was supervision or control; there must have been some coordination of who would work where and when – obviously there was some control since they had to wear the shirts and use BBH’s equipment.  It’s unlikely that they were evaluated; but would they be subject to discipline? Surely, if one of them were to blog or tweet about BBH being an exploiter of the homeless, presumably they would be discharged.  Of course, it would be also be relatively easy to make the opposite argument that they weren’t employees, but rather simply volunteers or participants in a charitable project.

In one case dealing with a charity the Federal Court held: “If the charity makes it clear from the beginning that it cannot afford to pay anyone, then people wishing to give of their time may very well agree to work for it as volunteers.”   The focus is on the idea of doing charitable work. The BC Court of appeal in a human rights case also made reference to charitable work or community service work in the context of volunteering and stated:

Given the breadth of volunteer activity in the community, the myriad benefits it can provide and the diversity of motivation, ranging from pure altruism and a desire to "give back" to enlightened self-interest in developing social relationships, experience and training, volunteerism as employment is an important question that remains for another day. 

That’s a great description of the starting place to distinguish between employees and volunteers – the motivation.  In contract law we refer to this as intention. Intention must always be looked at objectively.  What did the workers intend when they took on the role? Did they intend that that their efforts would be serving the greater good somehow? In a case involving the Salvation Army, the court made it clear that the officers of the Salvation Army were there to serve God as their primary motivation or intention, not to work.  That motivation may often be easy to see with charitable works. But almost always, when the corporation is a profit making institution, the worker’s intention is to either get paid or earn an opportunity to get paid.

I don’t think any of the workers here intended that walking around Austin providing festival goers with internet access to be a gesture of altruism or a desire to give back; they were doing it for the money. They were working at a 10 day job for which they expected or hoped to get paid.

The next step in determining whether similar activity would make the workers employees here in Ontario, would be to look at the Employment Standards Act.  Section 1of the Act provides:

“employee” includes,

 (b) a person who supplies services to an employer for wages,

(c) a person who receives training from a person who is an employer, as set out in subsection (2),

“wages” means,

(a) monetary remuneration payable by an employer to an employee under the terms of an employment contract, oral or written, express or implied,

(b) any payment required to be made by an employer to an employee under this Act, and

Arguably one doesn’t have to go any further than this definition. The workers are providing services for remuneration. This would definitely be the case if the money paid by the wireless user gets paid to BBH first and then in turn given to the worker.

If the money comes directly from the end user, then it might be argued that BBH is not paying remuneration. Nevertheless, that doesn’t end the issue because if an employment relationship does exist, then section 1(b) further adds that wages are those payments required to be made under the Act.  Section 23 of the Act provides that “An employer shall pay employees at least the prescribed minimum wage.”  Rather obviously, not paying doesn’t relieve the employer of the obligation to pay.  I have heard about restaurants doing this with servers saying that they are volunteers and do not have an employment relationship, but attend for the purpose of getting tips. I haven’t found any cases on this point, but the question of tips has come up in a case regarding Pay Equity. There, the tribunal stated:

. . .the tips are not provided by employers, who are the ones typically responsible for determining the level and nature of compensation, and are certainly the entities responsible for meeting the obligations under the Act.  So leaving aside for the moment the question of whether tips in any given situation are “ascertainable”, does the definition of compensation include those payments made by clients or customers who are not obliged to make the payments, have no obligation to meet the requirements of the Act and are essentially strangers to the employment relationship?    

In other words an employer can’t meet its obligation under the Act by saying that the wages owed are coming from a 3^rd party in the form of tips. Indeed, the ESA expressly excludes tips from the definition of wages so that employers cannot avoid their obligations to pay at least the minimum wage.  So the question remains as to whether the employment relationship exists in the first place. If it does, then donations from 3rd parties to the human hotspots would not meet the obligation of the employer to pay the minimum wage over and above the donations.  

In interpreting statutes with respect to whether an employment relationship exists, some cases suggest a statutory purpose test be used. It has been said that the purpose of Employment Standards legislation is to avoid exploitation of workers.  Given this purpose and the facts around the human hotspots, I would say that the proper interpretation is that they are employees.

Nevertheless, that may not end the debate; an employment relationship may not exist where the person providing the service is an independent contractor rather than an employee.  There are a number of tests that the courts use to answer this question.  The tests typically set out are: control, four fold, entrepreneur, enterprise/risk, economic realities and statutory purpose. I’ll save a discussion of these tests for another post. 

Suffice it to say at this point that in my view, that the threshold would not be met and the workers standing out there in the Austin heat would be employees – even if only for the limited term of 10 days while SXSW runs.

International Women's Day

This day, which was originally called International Working Women’s Day  is a day whose theme ranges from country to country and year to year.  The Status of Women Canada’s website describes this year’s theme to be to celebrate  “women's roles in the economic prosperity of rural, remote and Northern regions.” If you look at the website there are a number of interesting facts regarding the work of women in these communities.  

In my employment law class today we will be discussing one of Canada’s most important decisions regarding women, the Meiorin, case.  This is the case of Tawney Meiorin, firefighter, member of the initial attack crew of the wildland forest fire fighting team in the Golden forest district of British Columbia. When the BC government instituted new fitness standards, Meiorin was unable to meet one of the requirements – running 2.5 k in 11 minutes. She did 11:40. The run has nothing to do with outrunning fires – just a way to test aerobic fitness.  The basis of the case was the fact that this standard could be met by 70% of men on their first try but only by 35% of women. Moreover,  even after training women had a more difficult time than men of attaining the standard. The Supreme Court of Canada took the opportunity to set new tests for how employers may implement workplace standards.  Only where it is not possible to accommodate,  can the standard remain; if accommodation is possible, then the standard must be replaced with something that reflects genuine inclusiveness. 

One of the other important cases I always address in class in the famous Person’s case.  In that case, though not related to employment per se but rather to the office of Senator of Canada. Emily Murphy had been appointed a police magistrate in Alberta in 1916 but was initially challenged on the basis that only person’s could become magistrates. The Alberta court held that women were indeed persons. When Murphy later let her name stand for an appointment to the Senate of Canada she was rejected all the way through to the Supreme Court of Canada on the grounds that only “persons” could be appointed to the Senate. On appeal to the Privy Council (division of the House of Lords in England which used to be our final appeal option)  Lord Sankey held:  "yes, women are persons ... and eligible to be summoned and may become Members of the Senate of Canada.. . .  The exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word "persons" should include females, the obvious answer is, why should it not?"

Prior to the Emily Murphy case,  Clara Brett Martin, fought to be admitted to the law profession and was initially denied on the reasons that she was not a person.  In 1897 Martin became the first woman to practice law in Canada and the entire British Empire.  To do this she overcame opposition to women lawyers on grounds that feminine attributes could unduly sway judges and juries.  She lobbied to overturn regulations that barred women lawyers because only “persons” could be admitted.  As I have noted in earlier posts, more than half the admissions to law schools today are women. Yet it was just over 100 years ago when the Chief Justice of Wisconsin, Edward J Ryan held in the case of Lavinia Goodell:

We find no statutory authority for the admission of females to the bar of any court of this state. And, with all the respect and sympathy for this lady which all men owe to all good women, we cannot regret that we do not.

We cannot but think the common law wise in excluding women from the profession of the law. The profession enters largely into the well being of society; and, to be honorably filled and safely to society, exacts the devotion of life.

The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of the law, are departures from the order of nature; and when voluntary, treason against it.

The cruel chances of life sometimes baffle both sexes, and may leave women free from the peculiar duties of their sex. These may need employment, and should be welcome to any not derogatory to their sex and its proprieties, or inconsistent with the good order of society.

But it is public policy to provide for the sex, not for its superfluous members; and not to tempt women from the proper duties of their sex by opening to them duties peculiar to ours.

There are many employments in life not unfit for female character. The profession of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife.

Nature has tempered woman as little for the juridical conflicts of the court room, as for the physical conflicts of the battle field.

Womanhood is moulded for gentler and better things. And it is not the saints of the world who chiefly give employment to our profession. It has essentially and habitually to do with all that is selfish and malicious, knavish and criminal, coarse and brutal, repulsive and obscene, in human life. It would be revolting to all female sense of the innocence and sanctity of their sex, shocking to man's reverence for womanhood and faith in woman, on which hinge all the better affections and humanities of life, that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice; all the unclean issues, all the collateral questions of sodomy, incest, rape, seduction, fornication, adultery, pregnancy, bastardy, legitimacy, prostitution, lascivious cohabitation, abortion, infanticide, obscene publications, libel and slander of sex, impotence, divorce: all the nameless catalogue of indecencies, la chronique scandaleuse of all the vices and all the infirmities of all society, with which the profession has to deal, and which go towards filling judicial reports which must be read for accurate knowledge of the law.

This is bad enough for men. We hold in too high reverence the sex without which, as is truly and beautifully written, le commencement de la vie est sans secours, le milieu sans plaisir, et le fin sans consolation, voluntarily to commit it to such studies and such occupations.

Non tali auxilio nec defensoribus istis (not such aid nor such defenders does the time require), should juridical contests be upheld.

Reverence for all womanhood would suffer in the public spectacle of woman so instructed and so engaged. This motion gives appropriate evidence of this truth. No modest woman could read without pain and self abasement, no woman could so overcome the instincts of sex as publicly to discuss, the case which we had occasion to cite supra, King v. Wiseman. And when counsel was arguing for this lady that the word person necessarily includes females, her presence made it impossible to suggest to him as reductio ad absurdum (disproof of a proposition by showing that it leads to absurd or untenable conclusions) of his position, that the same construction of the same word would subject woman to prosecution for the paternity of a bastard, and to prosecution for rape.

Discussions are habitually necessary in courts of justice, which are unfit for female ears. The habitual presence of women at these would tend to relax the public sense of decency and propriety.

If, as counsel threatened, these things are to come, we will take no voluntary part in bringing them about.

Take a look at my post from January 23^rd below called Boys Night Out Part II to get a more current look at women in the profession.

Drinking Sorrow's Cup -- Lucy Parsons

"Oh, Misery, I have drunk thy cup of sorrow to its dregs, but I am still a rebel." Lucy Parsons, anarchist, labour organizer, rebel. Parsons died 70 years ago today. 

Parsons is best known for her involvement in the Haymarket Affair or Haymarket Massacre. This well known tragedy revolved around workers protesting for an eight hour workday. On May 1^st , 1886, hundreds of thousands of workers had taken to the streets cities in the United States in support of the cause. Parsons and her husband Albert themselves apparently lead 80,000 people up Michigan Avenue in Chicago. On May 3^rd  McCormick Harvester Works locked out its 1500 workers who had been protesting the cause and then brought in scabs.  A fight broke out between the workers and the scabs and 200 police officers were called in response; the police began shooting at the protestors killing four and injuring many others.

On May 4^th 1886 a rally was held in Haymarket Square in support of the workers and the cause and to address the violence at McCormick. One hundred and eighty police officers were called in to break up the rally and shortly after that an unknown assailant threw a bomb into the crowd. In response to this the police began clubbing and shooting into the crowd the result of which was the death of seven police officers and four civilians. The next day Parsons and her husband were arrested along with numerous other labour activists and anarchists. The charges against Lucy were eventually dropped but those against Albert and seven others resulted in convictions despite the concession that none of them had thrown the bomb.  Of the seven, four, including Albert, were hanged. When Lucy and their two children went to see Albert for the last time on the day of his execution, they were arrested and thrown in jail and not released until after his death.

Parsons and her husband were founding members of the IWW, International Workers of the World, also known as the Wobblies. The Wobbly Shop is a form of workplace democracy in which the workers have a say in, or elect, management of the company.  The IWW was also notable for the fact that at the time of its formation many unions would not accept immigrants whereas the IWW did. At its height in 1923 the IWW had 100,000 members. 

Parsons was arrested numerous times throughout her life and even at the age of 78 was convicted and sentenced to six years in prison for her participation in organized protests.

You can find more information on Lucy at www.lucyparsonsproject.org

Leap Day

The employment law question surrounding leap year is not whether there is an increase of women sexually harassing men, but calculation of wage costs.  Do employer’s get free labour on leap day? This was the position taken by CUPW in its leaflet “Canada Post’s Dirty Little Secret”.  The leap day pay issue arose with respect to RSMC’s (Rural Suburban Mail Carrier), a curious class of worker, in the  Canada Post system.  

“RSMCs are employees of Canada Post who are employed by Canada Post to deliver the mail in rural and suburban areas. They provide their own vehicles, hire their own helpers, and arrange for route coverage by replacement workers on days they do not work. They are paid on the basis of an annual salary, calculated based on the number of points of call, required daily kilometres, weekly average number to the door deliveries, and other factors determining the amount of time which must be spent delivering the mail.”

“In February of 2008 the Union published and mailed a flyer entitled “Canada Post’s Dirty Little Secret”, as part of a campaign to raise awareness and support for RSMCs in a dispute over unpaid work in leap years.” Because an annual salary was paid, the extra day in a leap year was not compensated.

CUPW paid for 12 bundles of flyers to be delivered to members of the public. Each bundle was to contain 100 flyers. The shop steward, Michael Danroth, who coordinated the delivery and paid for the mail, also took flyers out on his route. Management at Canada Post decided to audit his route and discovered that he had delivered 135 flyers.  This audit was conducted on the day of the mail delivery, February 29^th, by two members of Canada Post management visiting 700 “points of call”. (Given the additional cost of $3.92 for 35 pieces of mail as compared to the cost of two management workers (or were they free for the day too?) plus gas for the car for the day, it was probably not a sound economic decision.) (I also find it just a little creepy that members of Canada Post management might be snooping through my mail box.)

The union argued that the delivery was unintentional since the bundles were not accurately counted at 100. Evidence showed one bundle contained only 72 flyers. The arbitrator, nevertheless, found that Danroth intentionally delivered the extra flyers and upheld the dismissal. On appeal, the British Columbia Supreme Court upheld the arbitrator’s decision.