Fri March 7, 2014
SXSW Relies on Volunteers. Is That Legal?
It takes a lot of manpower to put on a festival, especially as one as big as South by Southwest.
"One thing that I don't think a lot of people realize is that there's like 200 people that have full time jobs at South by Southwest," says SXSW cofounder and managing director Roland Swenson. "During the event there are hundreds of more temporary workers that we hire."
When it comes to volunteers, Swenson knows there's a lot – even if he's not quite sure of the number.
"You know I think there's going to be over 3,000," he says. "I don't have a precise count, but that's for 15 days of South by Southwest."
SXSW's volunteer program has grown over the years along with the festival. Volunteer perks include music wristbands, gear and even badges, depending on the number of hours you work. Many volunteers return year after year.
Trevor Weede is one of those volunteers. He's a crew manager, and he says this is his 16th or 17th year volunteering at the fest.
"The more you volunteer, the more people you meet, the more volunteers, the more staff, the more registrants, and then every year it becomes like a summer camp – you go back and see all your friends," Weede says. "Kind of like a family."
It may be fun, but some think it's illegal.
Last week, writer Charles Davis published an article on Salon.com, saying SXSW profits from the volunteers' free labor.
"The law is clear that for-profits cannot accept volunteers," Davis wrote. "One can't work for free at SXSW any more than one can work for free at McDonald's."
Davis also cited New York labor lawyer Maurice Painko, who claimed it's 100 percent illegal – no ambiguity. He added he would gladly represent a class-action lawsuit against SXSW if any volunteers were willing to file one.
But is the law on volunteering really that cut and dry?
"Unfortunately, I feel like that article is very one sided," says Ted Smith. Smith is a partner at Cornell Smith Mierl and Brutocao, an employment law firm in Austin.
"The fair labor standards act is a very complicated statute and law," Smith says. "And it is full of exceptions and exemptions and exceptions to the exceptions. So it really required a careful reading. So there's not always a bright lined rule on this."
But what about SXSW? Do they think they've broken any laws?
"Honestly, I don't know," Swenson says.
But Swenson does say the perks volunteers receive change the relationship.
"I've always looked at our relationship with the volunteers as a transaction," he says. "Not something that we were getting for free. Obviously we've spoken to our advisors on this and we'll have more to say later."
"If you're an amusement or recreational establishment, and you're seasonal – so you're not open more than I believe it's seven months out of the year – then you're exempt from minimum wage and overtime," Smith says. "I think that's one of the areas these festivals could be relying on."
And the other? Fun. Smith says if somebody wants to volunteer for their own enjoyment, even if they get no payment, it should be legal.
"It's not part of their regular work and on their own free time and on their own for fun or their own enjoyment," Smith says. "They want to be involved or volunteer for these types of activities, and as part of their enjoyment they get to partake in part of the festival or get free passes to part of the festival. I think they've got a good argument that doesn't violate labor laws."
A lot of the volunteers seem to agree. Longtime volunteer Travis Weede certainly does.
"I take vacation for it," Weede says. "I took vacation from work. And I like that it's not my real job. It's a lot of work. It's a lot of fun work. But it's not the thing I get paid to do. It makes it a little more fun for me."
As far as a class action lawsuit? SXSW's Roland Swenson says he hasn't heard of one yet.
"All I can say is that it would be sad if we had to exclude the volunteers from the SXSW experience," Swenson says.
Since our conversation, SXSW has issued a written statement regarding the volunteer issue and the Salon article:
“We believe that we fully comply with federal laws, which permit SXSW to include seasonal volunteers in our annual two-week event. While SXSW regrets any confusion over this issue caused by media reports, SXSW would like to take this opportunity to publicly thank all volunteers for their contributions and for representing Austin so well each year.”