Eric Posner examines how businesses exploit cultural expectations to frame certain activities as non-work, creating a form of monopsony power that allows them to extract labor without compensation in areas ranging from college athletics to digital content creation. He argues that properly classifying these “invisible” forms of work as compensable labor would benefit society, challenging anti-commodification concerns and highlighting the law’s struggle to define work in these blurred contexts.
In his novel The Adventures of Tom Sawyer, Mark Twain tells the story of Tom tricking his friends into whitewashing a fence, a chore assigned to him by his Aunt Polly, by portraying the task as play rather than work. Later he reflects “that Work consists of whatever a body is obliged to do, and that Play consists of whatever a body is not obliged to do.”
This tale illustrates an often overlooked phenomenon of our economic life—that the same activity can be regarded as leisure or work, consumption or production. Businesses, like Tom, understand that certain types of labor often go unrecognized or uncompensated as a result of cultural understandings that frame them as something other than “Work”—and exploit this confusion.
Take the nonprofit National Collegiate Athletics Association (NCAA), which organizes and regulates university athletics in the United States. NCAA athletes, particularly in high-revenue sports like men’s football and basketball, produce enormous value for universities. They train intensively, often more than 40 hours per week, and their performances generate millions of dollars in ticket sales, TV rights, and merchandise revenue. Yet, until recently, they were never paid. The NCAA resisted antitrust and employment law litigation by portraying their Work as Play, or as education that students are lucky to receive for free. Only recently have courts begun to see through this pretense and recognized that college athletes, like professional athletes, “play” for a living.
The NCAA is beginning to learn what universities have known for a while now: that a person can simultaneously be a student and a worker. In the past, universities extracted labor value from students by requiring them to teach classes, do research for professors, and work as a condition for scholarships. In recent years, these students have finally acquired legal protections enjoyed by employees, including the right to form unions.
Another example is the unpaid internship. Many companies offer unpaid or low-paid internships framed as educational experiences. Interns often perform tasks similar to entry-level employees but without compensation or labor protections. In one case, an unpaid intern’s duties included “copying, scanning, and filing documents; tracking purchase orders; transporting paperwork and items to and from the [worksite]; maintaining employee personnel files; and answering questions about the accounting department.” He “interned” from 9 am to 7 pm five days a week without pay for this “educational experience.” A court said no, this was work, and he was entitled to a minimum wage.
Many organizations rely heavily on volunteer labor. While volunteering can be personally fulfilling and socially beneficial, it can also blur into exploitative unpaid work. The video game maker Electronic Arts enlisted volunteer “counselors” to answer questions for players of Ultima Online, while also employing staff who were paid to answer questions. Noting the identical duties of the paid and unpaid workers, a court held that Electronic Arts violated the minimum wage law by paying the counselors nothing.
Caring for children, elderly relatives, or disabled family members is vital but often unpaid labor. This work, disproportionately performed by women, is frequently seen as a familial duty rather than compensable labor, as “love” rather than labor. This can make it difficult for people to bargain for market wages. Au pair programs, ostensibly cultural exchanges, often involve young people (usually women) providing childcare and domestic labor for host families. While framed as a way to experience a foreign culture, au pairs frequently work long hours for low pay. A few years ago, au pairs successfully sued for minimum wage protections, arguing that their work is the same as that of nannies or domestic workers.
In the digital economy, consumers often unknowingly provide free labor to tech companies. They create content for social media platforms and provide personal data through online activities, which tech companies use to train AIs. Companies profit from this unpaid labor, but it’s rarely recognized as work. A few innovators have tried to create “data unions” that would enable consumers to bargain for pay, but these efforts have foundered on logistical barriers.
The failure to recognize these activities as work has significant economic and legal implications. Cultural understandings that frame certain activities as non-work can be a source of monopsony power for employers. By drawing on these understandings to portray jobs as play, education, or civic or professional duty, companies can push wages down—potentially to zero. This allows them to extract more surplus value from workers’ efforts. Even when workers are paid, these cultural framings may deter them from demanding higher wages or better conditions.
The law struggles to deal with these blurred boundaries between work and non-work. Courts and regulators must grapple with questions like: When does an educational experience become exploitative unpaid labor? At what point does a volunteer position become an employment relationship? How should we treat work-like activities that people engage in willingly without expectation of payment?
The Fair Labor Standards Act, which establishes minimum wage and overtime rules for employees, leaves the term “employ” and “work” undefined. Courts have developed various tests to determine employee status, looking at factors like the degree of control exercised by the putative employer and whether there is an expectation of compensation. But these tests often fail to capture the economic realities of invisible work arrangements.
Still, legal challenges have helped bring some forms of invisible work to light. In recent years, court rulings have recognized the employee status of student athletes, interns, and other previously uncompensated workers. The vague language of labor laws gives judges latitude to look past cultural framings to the economic realities of work relationships.
Just last week, a class action was brought against Elsevier and other commercial publishers of academic journals, alleging that the defendants had agreed not to pay academic referees who peer-review submitted papers. According to the complaint, the defendants agreed to treat referees as “volunteers,” which is to say, to pay them nothing. Whether or not this is true, the argument highlights the way that changes in conditions can change the meaning of a task. In the old days, academic journals were owned by universities and run on a shoestring budget. Scholars pitched in as referees, for free or for a pittance, seeing the often dreary task as a professional obligation. Today, many if not most academic journals are owned by enormous companies that make huge profits by charging high subscription rates that many universities cannot afford. The unpaid referee is just putting money in investors’ pockets.
In a recent article, I argue that bringing invisible work to light and properly classifying it as compensable labor would benefit society as well as the relevant workers. Inherited traditions and cultural understandings turn out to be a source of monopsony power for clever bosses with the insight of Tom Sawyer, or just a way to fool people into providing free services—like working for exposure. Antitrust and related laws that force employers to offer compensation for tasks that some people volunteer to do will draw more workers into the market, resulting in greater production of goods and services that consumers value. While some commentators worry about the “commodification” of activities previously done out of professional duty, self-improvement, or civic spirit, this anti-commodification ideal has only provided employers an excuse for exploiting workers.
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