Unions used to be American as apple pie, thanks in part to the New Deal policies put into action by Franklin Delano Roosevelt back in the ‘30s. And yet in this decade, union membership for salaried employees in the U.S. is at an all-time low. The tech sector, in particular, has seen very little movement until this week when Kickstarter — whose employees have advocated for a union over the past year — finally made it official and formed Kickstarter United. Vice, which reported on the unionization, said that Kickstarter’s new union represents over 100,000 white collar workers and signifies “a historic win for unionization efforts at tech companies.”
While Kickstarter United is based in Brooklyn, New York, not Silicon Valley, it could still spark movement around tech and possibly in games. Last February, as talk of Kickstarter United was heating up, AFL-CIO secretary-treasurer Liz Shuler criticized game studios’ “outrageous hours,” “inadequate paychecks,” and “stressful, toxic work conditions” as part of a larger letter published on Kotaku.
With major publishers freely cutting hundreds of staff whenever they feel that profits aren’t quite high enough, or with studio after studio acknowledging that crunch is just part of the typical game development process, many developers have little recourse without a union. Thanks to Game Workers Unite, formed in 2018, and more recently, the Campaign to Organize Digital Employees (CODE), which was borne out of the Communications Workers of America (CWA), the winds of change have been blowing a bit harder.
While game developers are still split on whether to push for unionization, 54% are now in favor as compared to 47% just a year ago, according to a GDC survey. At the same time, in an IGDA survey, 42% said that crunch was still expected in their workplace, which could be further reason to consider unionizing. That said, according to Emma Kinema, who co-founded Game Workers Unite and was hired by the CWA, there are a number of game developers who just don’t know where to start.
“In my experience self-organizing in the game industry, people are very bottlenecked by the lack of resources and lack of legal know-how and a lack of funding — it’s very tough,” Kinema told the LA Times. “The decades of experience and resources that come from partnering with an organization like CWA can take it to the next level.”
It doesn’t help that labor laws can be confusing, and according to Brandon J. Huffman, attorney and founder of Odin Law and Media, “Each state has different labor laws, in addition to federal law. Federal law requires certain protections for unionization activities. But about half of U.S. states are ‘right to work’ states, meaning that an employee cannot be compelled to join a union. This can lead to freeloading, or a hesitancy of employees to voluntarily join the union even after one is implemented.”
Furthermore, it’s important for game developers to understand that there are actually two distinct types of unions, as Huffman described: “Those that work horizontally to collectively bargain on behalf of everyone with a similar skillset and those that work vertically to collectively bargain inside of one company.”
It’s the latter type that we’ve seen with Kickstarter, and what we’ve witnessed in the games business with Nexon Korea’s Starting Point union. Huffman added that in order for this vertical kind of union to be effective, “the labor force inside a company must have enough leverage as a group and enough buy-in from the employees.” He foresses more vertical unions popping up with AAA studios and other large or mid-size studios.
If a group of individuals at a game studio does pursue this road, they’ll first need to reach a certain threshold of their workforce, and then they’ll also need the assistance of an outside union organizer, according to Richard Hoeg, attorney at Hoeg Law. The union organizer will form a committee and then seek to gain sign-off from employees.
“Once they have 30%, they ask the National Labor Relations Board to hold an election, and if a majority vote for a union, then it’s done. [But] if they go straight to 50%+ percent they can show that to the employer and the employer can ‘self recognize’ without an election as well,” Hoeg explained, adding that the NLRB does “add a government wrinkle that can add a logistical hurdle.”
It’s hard to judge at this moment whether Kickstarter’s actions to unionize will represent some kind of tipping point in tech and games, but for Kate Edwards, the former IGDA executive director who now leads Global Game Jam, and has always advocated against crunch and for unions, Kickstarter United is a big step in the right direction.
“The action of unionizing at Kickstarter is very welcome news in my view. I hope this is a positive sign that workers in the tech sector and games especially are finding the collective courage to organize and assert their leverage for better policies and conditions, when management fails to listen to them,” she remarked to GameDaily.
Renee Gittins, current executive director at IGDA, also praised Kickstarter’s progress in recognizing a union for its employees. That said, she also cautioned that unionization isn’t always the answer.
“It is inspiring to see Kickstarter employees rally together around a solution they feel best fits their negotiating needs. Unionization, the protection of tech workers, their quality of life and, most importantly, health have been among the most significant topics in the game industry for years. We all want to see game developers supported in their careers and protected from extreme crunch and other harmful behaviors,” Gittins told us.
She continued, “Company unionization is one possible answer to address these issues, and it has advantages over other forms of unionization by preventing the outsourcing to non-union members at a company level. Game studios may look towards Kickstarter’s unionization for inspiration in crafting their own solutions. In this process, the IGDA recommends all employees of the company participate in such discussions, particularly among small and mid-sized studios where managers and executives work very closely with their teams.”
Given that Kickstarter also fired two of its union organizers last September, Gittins cautioned game developers not to become too reliant upon studio leaders in these situations. “Game studios in particular usually have passionate leaders who have spent their whole careers climbing up through the game industry, though it’s understandable in this case Kickstarter’s employees didn’t want to engage people with firing capabilities after two union organizers were dismissed. If studio leaders cannot be trusted to be a productive and supportive part of such discussions, then they may not be well suited for their positions,” she noted.
Unions can’t solve all the problems that game developers face in the workplace today, but they can certainly give them more ground to stand on, and that alone is worth something. Emily Grace Buck, who used to be a narrative designer at Telltale before the company collapsed and laid off hundreds of staff, explained to Wired that if she had been a union member earlier in her career, there’s a chance that she could have fought back against 80-hour weeks, canceled projects, or being demoted.
“With a union, it’s not to say that those things wouldn’t happen, but there would be channels to report and handle them. Instead, game devs like me often live in fear that if we speak up or try to improve our situation, we’ll lose our jobs or, at the very least, our reputations,” she lamented.
But what some developers may also be going up against when trying to organize, Hoeg said, is a general sense that skillsets among employees at a studio are too varied, and as a consequence, unionization isn’t viewed equally by all.
“The more the output of a given employee differs from his or her neighbor, the harder it is to make the sales pitch that ‘collectively bargaining’ a contract for those employees will benefit those individuals,” he said. “[There are] likely some honest, legitimate concerns for the average worker who may not view what he or she does as terribly interchangeable with that of their neighbor.”
Moreover, there’s a likelihood that some game developers are actually frozen into inaction by their own fears about losing work to outsourcing.
“While employers are prohibited from taking negative actions directly against organizers (and union members, once formed), many game developers (or other tech workers) are likely to have a real concern that an increase in labor costs will just as likely result in further incentive for their employer to outsource work to cheaper cost alternative locations (or subsidiaries) as increase their standard of living, and in the worst case, could result in studio closure,” Hoeg added.
“Compounding this issue, without quantitative production to fall back on, an employer’s subjective reasoning behind firing, say, an artist, could be very difficult to disprove, resulting in the possibility of retaliation by ‘bad actor’ employers… [Also,] the process of bringing a retaliation claim against such an employer is long and arduous, and given the subjective difficulties noted above, might dissuade some from considering the initial possibility of forming a union.”
Even if unionization isn’t the right approach for some studios, there is a viable Plan B: cooperatives. Glory Society believes that a co-op structure (more common outside of America) could be the wave of the future, especially for smaller game studios. With a co-op, all aspects of the studio are operated democratically. As Glory Society co-founder Bethany Hockenberry explained, “It prevents the sorts of power-hungry manager behavior that you hear about in the industry. We’re legally-bound not to be dicks.”
If game developers had a “Bill of Rights,” the right not to be treated like garbage would no doubt rank near the top. This situation isn’t about to be completely solved in 2020, but you can bet that unionization is going to be hotly debated for some time.
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