How is academic peer review legal?

August 3, 2023 10:43 AM

There are many criticisms of academic publishing business models, and this question is not about most of them. There is a specific issue that I have never seen adequately addressed. In the USA, at least, how is a for-profit publisher getting volunteer peer review labor from academics not in violation of the Fair Labor Standards Act?

There are many different business models, and an increasing desire to reform them toward not-for-profit and/or open-access ones. But still, a not-atypical model goes like this:

For-profit publisher (say, Elsevier) gets money from charging authors and charging university library systems for subscription access. The "product" they sell is supposedly the quality of the publications. Part of that quality is the peer review process.

When an author submits an article for consideration, the journal staff send it out for peer review from other academics. That peer review is usually uncompensated, considered a "service" to the discipline.

How is having a volunteer workforce performing such a core function of a for-profit enterprise legal? Other academics, lawyers, anyone with any insight... ?

posted by secretseasons to Work & Money (16 answers total)

Legal? You and I are both contributing to this commercial business (MetaFilter) by giving it content, and we are both doing so for free. We might decide that we deserve to get paid for our contributions (lol), but MetaFilter isn't committing a crime by not paying us.
posted by Back At It Again At Krispy Kreme at 10:55 AM on August 3, 2023 [4 favorites]

Interesting you should bring this up, because for-profit Wiley is just now facing a major rebellion from its editors, who are also unpaid academics.

Science publishing is one of the biggest scams in existence.
posted by jamjam at 10:58 AM on August 3, 2023 [17 favorites]

Publishing academic here. When I review, I don't sign a job contract that is regulated by the FLSA. I'm just ... "volunteering" my expertise.

I also act as an associate editor for a journal, so I'm part of the "journal staff" that sends papers out for review. That one I am paid something that works out to $0.0000023/hr. And of course exposure/association. I don't even remember whether I signed a contract there. I am so assimilated.

There are new journals that have popped up that claim they are trying to radically flip the model, but they are not fundamentally changing this aspect of publishing.

I wish I had insight, but it's just plain monopoly. I need to publish, for my (core) job. I sigh a lot.
posted by Dashy at 11:09 AM on August 3, 2023 [12 favorites]

This is actually one of the easier fact patterns for legal unpaid labor - that it’s not unpaid at all, because the editors are salaried academics and participating in the research community is part of what they are paid to do. Advertisers aren’t paid by the television network to screen and comment on TV shows on which their ads are to appear, to use a workable analogy.

If the industry made heavy use of independent scholars for unpaid peer review that would be problematic.
posted by MattD at 11:23 AM on August 3, 2023 [10 favorites]

Yup, it's not that peer reviewers are unpaid, it's that the publishers aren't the ones paying 'em. (For peer review, not even in the "prestige" associated with publication -- peer reviewers' work is mostly uncredited.)
posted by humbug at 11:38 AM on August 3, 2023 [4 favorites]

Academic here. A couple of things, leaving aside whether or not this is fair or should be handled otherwise, but just speaking to the set-up how it exists.

1. Service to the discipline (which peer-review is) is in principle one of the things expected many academics who are in tenure-track or tenured positions at their universities as a part of their overall successful job performance. When I was putting together my tenure dossier, I had a section where I explained my contributions to my field beyond my university. So while it's all vague and imprecise you *could* say that part of my salary is remuneration for serving as a peer reviewer for academic journals.

2. In many cases, journals will offer some nominal "compensation" for peer review, for example free access to the journal for X number of months. Now, in most cases it is moot because most peer reviewers will be able to access those same articles through their institutional libraries, but it's a gesture at remuneration. Academic presses offer a bit more to their peer reviewers, presumably in recognition of the fact that reviewing a book manuscript is a much more time-consuming task than reviewing an article. Generally an academic press will offer either some amount of money or some (usually larger) amount of credit to acquire books they publish.
posted by virve at 11:56 AM on August 3, 2023 [4 favorites]

It's worth noting that this profiteering on unpaid labor continues in part because of the precarity of younger scholars.

In a more open system, they could say "no, I won't do this extra work for free, because I am just a poor grad student or postdoc and I'm already overworked!" but they generally feel they can't do that, or they'll lose their low-paying jobs (it's either promotion or get fired for most peer reviewers). Most senior tenured academics don't peer review anything unless they damn well please. Most of the review work is done by grad students, postdocs, and new professors.

It is indeed a somewhat odd situation, where a handful of huge global houses of power make immense profit, but without paying for the work, the materials, the review, the editing, or really anything except the last step of distribution. But they don't mind the cheap distribution costs, because the same institutions they exploit for labor have entered into a sort of death pact, wherein they will pay vast sums of money for access to this material, no matter how high the costs.

In principle senior academics could and their institutional libraries could band together to cut out the fat-cat parasitic publishers, but in practice that's not going to happen for a while (though if anyone has ideas on that I'd love to hear them).
posted by SaltySalticid at 2:43 PM on August 3, 2023 [3 favorites]

Legislators believe that these publishers are important to society—if it somehow weren't legal for them to operate, the publishers and legislators would work together to make it sure it became legal.
posted by panic at 4:10 PM on August 3, 2023

I handle conflict of interest and conflict of commitment reviews professionally for academics. A fun thing about this kind of peer review work is that unpaid, it can be done during researchers' salaried effort time at the institution as part of their expected contribution to the scientific community.

Pay them for it, and suddenly it's an external financial relationship that they can't do at the same time they're supposed to be doing paid work for the institution. (There's some wiggle room here within a faculty consulting allowance but a lot of faculty use that for actual consulting.). So now peer review becomes something they're doing on top of a full effort load, in their free time, and not getting service credit for it.

I wouldn't argue that the way it is, is the way it should be. Just that there are some odd quirks of the way it is now that are perhaps not readily apparent.
posted by Stacey at 4:46 PM on August 3, 2023 [7 favorites]

It's even more bananas, because universities are often paying more often than this:
1. They pay the faculty member's salary, which includes the faculty member's time doing the research. (This might be different if the research is grant-funded, but in that case, the funder might be the federal government.)
2. They pay the salary of the faculty members who edit the journal and serve on the editorial board (sometimes but not always the editors get compensation from the journal).
3. As you have noted, they pay the salary of faculty members who review the manuscripts.
4. As you have noted, the library then pays to subscribe to the journal.

Honestly, the researcher's time is much more extensive than the reviewers' time, but it's generally funded by some other non-profit, like a research organization or university.

And this system keeps perpetuating itself because of the tenure process. Assistant professors on the tenure track are going to be very cautious about where they submit their research because they want to keep their jobs so they are more risk averse. If Important Senior Professor says Expensive Elsevier Journal is the best place to publish, that's what the junior faculty member will target.

Librarians have been yelling about this for decades, and the answer is at least partly through the open access movement, but it's slow, because it's hard for libraries and open access to compete with highly profitable and profit-motivated publishers.
posted by bluedaisy at 4:52 PM on August 3, 2023 [5 favorites]

it is also considered that paying researchers, writers, and/or reviewers would compromise their intellectual independence.
posted by Miko at 7:50 PM on August 3, 2023

The last paper I reviewed took me about 12 hours and won me a Certificate from Wiley at the end of their financial year. I am not ungrateful, so I wrote back to the robot who sent me the Cert: "Thank you so much, I printed it out at A3 and folded it into a hat: really useful to help survive the current heatwave. With care, recipients can ensure that "WILEY" is displayed at a jaunty angle over the left eyebrow".
posted by BobTheScientist at 12:22 AM on August 4, 2023 [9 favorites]

I’m wondering if there is some history here that would make this make more sense. I believe some journals are or were at least nominally run by not for profit scholarly societies. It sort of makes more social sense to do this volunteerism for your colleagues rather than for a for profit entity, and that’s still how we talk about the labor — service to the discipline. Any history of scholcomm wonks here able to weigh in on whether who profits from the journals has shifted over time?
posted by eirias at 5:19 AM on August 4, 2023 [2 favorites]

Some of the most prestigious journals in science are somewhat in the vein on nonprofit, eg Proceedings of the National Academy of Sciences is published by the NAS, which has a congressional charter and is organized as a nonprofit. Similar story for Proceedings of the Royal Society. Science is run by the AAAS, a non-profit org. However Nature is owned by Springer, and thus is a ruthlessly for-profit venture.

While these non-profit journals have a big image and are sort of household names, they represent only a tiny fraction of the yearly output of scientific research publication. PNAS puts out around 3.5k papers a year. Science has around 600. Call it a few thousand when you add in all the other journals run by AAAS. In contrast, Springer has around 2000 journals, Elsevier has at least 2.5k. I think it's safe to say that the vast majority of scientific publication supports the extreme profit of private publishing houses. Elsevier had about $3.5 billion in revenue in 2022 and took home about $1.3B in profit, Springer reported over $4B, Wiley is the small fish at *only* $2B revenue for 2022.

In short, I think you're right eirias, scientific publishing used to be a lot more about professional societies, but sometime the global megacorps took over, and now they nearly completely dominate by extracting profit from unpayed labor.
posted by SaltySalticid at 9:36 AM on August 4, 2023 [4 favorites]

eirias, that's a great question. There's an open access briefing paper, "Untangling Academic Publishing: A history of the relationship between commercial interests, academic prestige and the circulation of research," that seems to cover some of this history. Quoting from the executive summary:

For centuries, publishing has been a means for scholars to share their research beyond their immediate acquaintances. However, until relatively recently, research publications were rarely financially profitable for authors or for the learned societies that helped to disseminate new knowledge. Virtually all journal publishing and much book publishing depended on the generosity of sponsors who were willing to subsidise the costs of circulating knowledge in the scholarly community. In this paper we show how, during the early Cold War, academic publishing became a highly profitable industry. The international expansion of research, coupled with growth of the university sector and relatively generous funding in the UK (and the USA), created a context in which academic publishing could be transformed from something needing support into a way of generating income....

During the professionalization of academia in the early twentieth century, publishing became tightly linked to the institutional and disciplinary cultures of academic researchers, and a key driver of career progression. Modern academia has been described as a ‘prestige economy’, operating on the symbolic capital generated primarily by publications, rather than on direct financial rewards. During the post-war decades, editorial peer review became particularly important as a way to identify publications that counted in this prestige economy. Since the 1980s, increasing demands for accountability by government of universities, and in turn by universities of their staff, have significantly increased the perceived role of research and research outputs in demonstrating institutional and individual excellence....

During the three decades following the Second World War, the expansionist strategies of commercial publishers served the expanding research community well. But this mutually beneficial relationship became difficult to sustain in the 1980s, when UK universities entered a period of cuts and under-funding that made it impossible for them to keep their libraries stocked with all the latest academic books and journals. The crisis in library funding did not blow over, but became the new normality. Since then, the interests of academics and publishers – often portrayed as shared – have been diverging.

For large publishing companies, the arrival of the Internet offered an alternative route to profitability, with new opportunities to monetise content and to lock-in institutional customers. For academics, it offered promising opportunities for faster communication with other members of their international research community. Historically, the peer review processes on which academic reward and recognition depend had belonged to disciplinary communities, learned societies and university presses; but their adoption by commercial publishers in the 1960s and 1970s means that they are now sold as a key value-added service to the academic community. This means that most academics remain heavily invested in traditional publishing outlets, and have acquiesced in the transfer to the online world of existing structures for the allocation of professional prestige – and with them, the commercially-oriented model of publishing.

posted by bluedaisy at 1:51 PM on August 4, 2023 [3 favorites]

Nice find, bluedaisy.

Modern academia has been described as a ‘prestige economy’, operating on the symbolic capital generated primarily by publications, rather than on direct financial rewards. During the post-war decades, editorial peer review became particularly important as a way to identify publications that counted in this prestige economy. Since the 1980s, increasing demands for accountability by government of universities, and in turn by universities of their staff, have significantly increased the perceived role of research and research outputs in demonstrating institutional and individual excellence....

For the first time — perhaps this makes me awfully naive — I am mentally comparing the hours I spend on peer review to being asked whether my customer service agent at Dell deserves five stars. I am happy to spend some of my paid time improving the state of research in my field, to whatever extent I can, but I’m a lot less excited about smoothing the path to cost savings for some random provost.
posted by eirias at 5:29 AM on August 5, 2023 [2 favorites]