Pricing Discussion FAQ

For legal reasons, certain discussions are not allowed on the SF WoW list. Specifically, any discussion that may be construed as an attempt to fix prices is not allowed.This document details SF WoW’s policy regarding the discussion of pricing, rates, and salaries on the SF WoW mailing list or at SF WoW events. It was developed by SF WoW’s Directors and Board with assistance from SF WoW’s legal counsel, Sandra J. McNabb, Attorney, Perez & McNabb

What is SF WoW’s policy regarding discussions of pricing?

SF WoW does not allow any discussions of any aspect of pricing or compensation for participant’s services or products on our mailing list, Web site, or at any of our events.

Failure to comply with this policy will result in termination of membership and termination of access to SF WoW’s programs. We will make every effort to communicate this policy regularly and warn members where possible, to help them comply.

What is price fixing?

Price fixing is an agreement among competitors to charge a certain amount for their services or products or to stabilize prices. Price fixing is considered anti-competitive by the US government and is therefore illegal.

Why does SF WoW have this policy?

According to §1 of the Sherman Act (15 U.S.C. §§1, et seq.) price fixing is illegal. The exchange of information about pricing can be a factor in making an antitrust case for price fixing. Since SF WoW does not monitor members’ conduct, it cannot determine the intent of our members’ discussions about pricing, and cannot determine whether exchanges of price information might hamper competition, our attorney has advised us that our policy should be to prohibit all such exchanges of pricing information on our mailing list and at SF WoW events.

According to our attorney, “Because agreements to fix prices are rarely formally agreed to and documented, and because conspiracy to do so may be even more difficult to pin down, proof of price fixing is virtually always based on circumstantial evidence and inference. Hence, the fact that there was an exchange of price information, coupled with evidence of, for example, uniform or similar pricing, may lead to a finding of price fixing.” The government has a lot of leeway in making a case against price fixers, and as a result SF WoW intends to steer widely clear of any misconduct by members using our resources.

What if I’m not sure whether a particular discussion is acceptable?

When in doubt, please send an email to our Board at board@sfwow.org or to the Listmom at listmom@sfwow.org for an opinion. SF WoW’s leadership is typically able to respond to these queries within a business day, though our response may take longer if we need to consult with our attorneys for an opinion.

What if I become aware of pricing discussions on the list or at SF WoW events?

If you become aware of a violation of this policy on our mailing list, please send an email to listmom@sfwow.org to make sure she catches it and can contact the party that made the error.

If you become aware of a violation of this policy at an event, we ask that you indicate that you think the conversation may be a violation of SF WoW’s pricing discussion policy (if you feel comfortable doing so) and most certainly we ask that you contact the event manager or one of SF WoW’s Board right away, so that she can explain SF WoW’s policy. You can also send email to the Board of SF WoW at board@sfwow.org.

Can I ask other members of SF WoW to contact me off list to discuss pricing?

We cannot allow members of SF WoW to use SF WoW’s resources to have or initiate pricing discussions of any sort. What you choose to do when not using SF WoW’s resources (meaning our mailing list, web site, or events) is entirely your own business, and SF WoW has no desire or ability to set policies for your personal behavior when you are not using SF WoW’s resources.

How can I find out how to price my services, then?

Of course SF WoW wants our members to be compensated fairly. To that end, we have listed a number of resources that are identified as dealing with that topic generally. If you find additional resources that are useful, we ask that you let us know, so that we can add them to this list. Please email webmistress@sfwow.org with suggestions.

Common objections to the policy, and our responses to them.

  • What about my freedom of speech? Who is SF WoW to tell me what I can and cannot discuss?
    Freedom of speech merely guarantees that the government will not interfere with your right to express your opinions. It most certainly does not guarantee that private organizations will allow you to say or do anything you wish to while using their resources. SF WoW is a non-profit organization that extends certain benefits to our members and constituents. In exchange we require that those individuals abide by our (not extensive) policies. SF WoW is well within its rights to set certain standards for community involvement, particularly where it is the opinion of the leadership and attorneys of the organization that those standards are necessary in order to protect the organization from legal problems.

  • Don’t you want members to be empowered?
    We do - that’s why SF WoW exists. But we are not willing to risk violations of law in order to empower our members. Even the specter of legal action against SF WoW would be devastating for our organization financially (we run on a very limited budget) and a huge distraction for our all-volunteer leadership.

  • Do you really think SF WoW could be prosecuted for price fixing?
    We aren’t sure, but we are committed to steering clear of potentially illegal actions or actions that might be unclear in terms of legality, regardless. As laypeople, we follow the advice of our legal counsel on legal matters. And we are not interested in serving as a test case or enduring an investigation around allegations of price fixing.

  • SF WoW is a free resource, how can you tell me I can’t use it however I want?
    SF WoW does not charge for access to its mailing list or charge membership fees. Our only condition for use of the resource is that our members and constituents follow the (few) policies we set. SF WoW has the right to set certain policies or guidelines for any members who wish to use the organization’s resources.

  • I’m just a lowly freelancer, how can the government care what I am doing?
    It is very likely that there are a number of freelancers on SF WoW performing services similar to the ones you do. If a number of you agreed upon prices (or even knew each others prices and adjusted accordingly), you could, in fact, impact the local market for those services. This is why trade associations and professional organizations need to be extremely careful not to accidentally allow price fixing.

  • Why aren’t unions accused of price fixing? And why can’t SF WoW’s members discuss prices under the same exceptions?
    There is a specific clause in the Clayton Antitrust Act exempting unions from the Antitrust laws as long as each union acts alone in its self-interest. This is based on a legislative decision that public policies advanced by unions outweigh those advanced by the antitrust laws. However, the exemption is limited to true labor unions, those that collectively bargain for their employees. SF WoW is not a union, but rather a non-profit professional organization. There is no similar exemption for non-profits or trade groups generally.

  • What about salary guides? How are they legal?
    Businesses are allowed to perform aggregate research about past pricing or salaries, provided past pricing or salaries are not equated to actual individuals or companies in the research. SF WoW has considered the possibility of performing such research in order to assist our members. However, it is our strong opinion that we do not have the resources to do a better job than the companies that already focus on this sort of research professionally.
  • Is SF WoW responsible for discussions that occur on its mailing list? Aren’t you protected by the Digital Millennium Copyright Act?
    The Digital Millennium Copyright Act does provide protection to on-line service providers. However, these protections deal with copyright, not potential antitrust violations. While an on-line service provider might argue that the same policies should apply in analyzing potential antitrust violations, the Act itself does not apply.
  • Don’t these laws around price fixing apply to businesses? Why are these relevant for individuals?
    Individual freelancers and consultants (sole proprietors) are in fact small businesses in the eyes of the government.
  • What about individuals who are not contractors, but are just employees who want to share salary information via SF WoW?
    According to our attorney: “Technically, employees are not liable for conspiring to price fix where they act for their employers (i.e. their interests are the same). If employees have an independent interest, however, they are potentially liable for conspiracy. An independent interest may be an intention to become a consultant, a desire to increase salaries for employees throughout the industry, or other possibilities too numerous and specific for SF WoW to speculate about. Thus, as with trying to monitor why information is being exchanged in the first place, this is an area which is simply too difficult for SF WoW to police. Another potential problem in this area is that employees may have agreed with their employers to keep information with respect to pricing and/or salaries confidential. Disclosing such information may be a breach of contract or a trade secret violation. While it may be difficult to show that SF WoW conspired in such violations, it seems prudent to steer clear of such potential problems.”

What Can I Do if I Disagree with this Policy?

You have several options if you disagree with SF WoW’s policies regarding pricing discussions:

  • One option is to remain active in our community, but source market information in order to determine pricing for your services elsewhere. We have provided a list of resources in this policy document to help you research pricing. If you wish to suggest additional resources, please send an email to webmistress@sfwow.org.
  • Another option is to not participate in SF WoW. We hope this won’t be your choice - we welcome and aim to serve a broad community. We place very few constraints on the members of our community regarding their communications. However, by subscribing or attending our events, you agree to abide by the very few constraints we set for community involvement. (See the mailing list FAQ for any other guidelines for participation in SF WoW).
  • We do not anticipate changing this policy, as it is based on the advice of SF WoW’s attorney. However, if you wish to provide SF WoW with a legal brief stating alternatives to SF WoW’s existing policy regarding pricing discussions (or an opinion from the San Francisco and US Department of Justice), we will consider it along with the opinion we have already received.

Rate, Salary and Antitrust Resources

Consulting and Freelance Rates

Salaries

Antitrust and Price Fixing

Resources Related to Price Fixing Issues