These complaints, and many others, led a number of Observers.net members last September to send investigation requests to the Department of Labor last September, subsequently submitting documents supporting their complaints. The Department of Labor, however, is specifically interested in the question of whether volunteers were working as employees. The Fair Labor Standards Act requires that workers should be fairly recompensed if their work is deemed critical to the company's bottom line. According to Observers.net, the Department of Labor is now asking the former volunteers to submit evidence showing that at AOL "volunteers' work is similar to or the same as the work done by paid employees"; and that "volunteers' work is advertised as and/or otherwise considered integral to AOL's business." (A spokesman for the Department of Labor said he couldn't confirm or deny an investigation.)

In response, the volunteers insist they are doing the same work that AOL and ACI employees are doing -- that, like AOL employees, they are running communities, training new employees, doing reams of paperwork, answering AOL members' technical questions and even, in the past, creating AOL pages using the service's proprietary Rainman software, but not getting proper recognition for it from AOL. Many, in fact, feel that their work is utterly critical to the community areas on AOL, and therefore to AOL's success.

"Considering the amount of work many of us put in weekly, and seeing as how AOL would crash and burn without us, I don't think it's right that their service is mainly handled by us 'volunteers,'" complains one current volunteer, who says she would love to be paid for her work.

But while AOL agrees that many of its members find a big community "really important," the company also denies that the volunteers are that critical to developing the communities. According to AOL spokeswoman Ann Brackbill, the volunteers don't build the communities, they simply emerge out of them. "It's less about whether [volunteerism] is critical or not critical, but is it organic to the Net and will it just happen. We think natural leaders who participate arise in both the online world or the offline world."

They also deny that volunteers' duties overlap in any way with the work of paid staffers -- a critical point for any Department of Labor investigation. Says Brackbill, "We have a group of paid employees who coordinate the activities but they are not 'community leaders' -- their jobs are much larger in scope than the duties a community leader performs."

Brackbill confirms that AOL is speaking with the Department of Labor, but won't elaborate on either the claims of Observers.net volunteers or about the potential investigation except to point out that it isn't a formal investigation yet.

(America Online has been legally challenged on its use of volunteers in the past. According to an article in Legal Times from November 1995, two volunteers filed court complaints against AOL demanding back wages for the time they spent managing its games community; both also complained that they were summarily fired for disagreeing with management. Both plaintiffs were offered settlements by AOL. One plaintiff won a small claims court awards of $562 in damages for "back wages" based on his lost hours of free AOL time. According to the Legal Times articles, other volunteers also asked the Department of Labor to look into the community leader system at that time.)

Do the volunteers have a chance of winning this dispute? Answers from labor law experts are across the map, but most say that this is uncharted territory. As Alan Hyde, law professor at Rutgers University and labor law expert, explains, "This is the first time I've ever heard of a volunteer working for a company, assisting their profit-making ventures for free. It's mind-boggling. And I have absolutely no idea how that would be handled under the law." He ponders, "If people do it, and know that they are doing it, I don't know why it ought to be illegal. If they are unhappy with the situation they should leave."

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