Here’s How Professional Union Busters Talk About ‘Woke’ Tech Organizers
A law firm webinar advised employers on how to avoid becoming a target of CODE, an organizing initiative in tech and video game industries
On July 30, the employment and labor law firm Jackson Lewis put on a one-hour webinar designed to educate employers on a new threat: a wave of union organizing in the video game and technology industries. More specifically, it promised to teach them to defend against it.
The webinar, called “Breaking the CODE: Union Organizing in the Video Game and Technology Industries,” focused on a group called Campaign to Organize Digital Employees (CODE) that was formed in January 2020 by the Communications Workers of America (CWA). CODE won its first campaign in March when it successfully organized employees at the communication software startup Glitch, and it is part of an unprecedented surge of tech worker activism: Throughout the last couple of years, Microsoft employees have protested the company’s work with ICE, Google employees have protested the company’s work with police departments, and Amazon workers walked out in protest of the company’s response to Covid-19. Meanwhile, a group of tech contract workers for Google, Kickstarter employees, and a small subset of Instacart workers have voted to unionize.
And just this Wednesday, in a move particularly relevant to CODE, hundreds of employees at the video game giant Blizzard Entertainment organized a list of requests for management, including fair pay and increased vacation time. “Get in touch! We can do this!,” tweeted CODE, in reference to a suggestion that the employees should form a union.
A sign-up page for the webinar explained it would “discuss the CWA’s likely organizing strategies, ways to proactively address employee workplace issues, and how to lawfully address union organizing in your business.”
OneZero registered for and attended the webinar, which provided a rare window into how employers in the tech and video game industry are being advised to ward off tech workers’ burgeoning interest in unions.
“Part of it perhaps is the younger, more ‘woke’ component of the workforce; maybe it’s just a more socially active era we’re in. But it’s clearly an element of this kind of organizing that we’re seeing.”
The host of the webinar, a principal at Jackson Lewis’s Boston office named Patrick L. Egan, classified the new wave of tech organizing and activism as distinct from others because of its emphasis on company values rather than employee wages, benefits, and treatment. He cited walkouts and petitions focused on issues such as pay equity; inequality between contractors, subcontractors, and employees; and the type of work an employer is engaged in, for instance, work with the Pentagon, ICE, or law enforcement, explaining that this type of activism overlaps with organizing in the tech and video game industries. Without citing a source, he said that there had been more than 100 incidents of employee activism in tech last year, three times more than the year before and nine times more than in 2017.
“This has a whole different dynamic to it,” he said. “Part of it perhaps is the younger, more ‘woke’ component of the workforce; maybe it’s just a more socially active era we’re in. But it’s clearly an element of this kind of organizing that we’re seeing.”
In the Kickstarter organizing campaign, a debate about Kickstarter removing a comic book called Always Punch Nazis, which employees perceived as caving to political pressure, started the unionization effort. “Most employees in a union want to influence decisions in terms of their pocketbook; here we have employees wanting to shape company values,” Egan said.
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Egan described the approach of CODE as slow, methodical, and tailored to each workplace. Of one of the group’s co-organizers, Wes McEnany, he said, “Based on his tweets, he is a dyed-in-the-wool socialist, he’s very aggressive, he’s an in-your-face type of organizer. He’d be like a dog on a bone.” Of the other co-organizer, Emma Kinema, who is also co-founder of a network of game workers with more than 20 global chapters called Game Workers Unite, he said, “She’s really good at understanding what is required to successfully organize”
“They’re gonna organize anywhere from video game startups to the largest tech companies in the country,” Egan said of CODE’s goals. “They’re gonna organize contractors and subcontractors — we’ve seen both already — and they’re gonna organize across disciplines.”
“Get some easy wins. Communicate it, take credit for it, and show your employees that you’re on the job.”
He said a key part of CODE’s strategy was to overcome the idea that unions weren’t for white-collar workers in tech and video games, and to teach workers that their dream job could still be improved. As he put it, “convincing the employees that even though you’re doing your life’s work, you’ve arrived, you’re here, that there’s more to it than that. That it can be better, and it can be fairer, it can be more transparent, and we can deal with the unfairness and the lack of voice that you feel.” For instance, employees may not be able to avoid “crunch” time — periods of long hours before a deadline — but CODE may tell them they could play a role in deciding how much and when overtime is worked, and how much they are compensated for it.
Egan identified layoffs, job security, and fairness between subcontractors, independent contractors, and employees as particular vulnerabilities to employers, saying CODE had recognized organizing subcontractors in particular as the greatest immediate opportunity for success in Silicon Valley. “You are probably quite aware that a misclassification can be expensive in a wage and hour lawsuit. But it can also breed resentment which can fuel a union organizing campaign since ICs [independent contractors] won’t have benefits, their wages may be different, and they’re working side by side with folks who’ve got a different, better package. It’s a real volatile mix.” In the most famous example of a tech employee misclassification lawsuit, Microsoft in 2000 agreed to pay $97 million to thousands of temp workers who worked alongside its employees but wore different color badges and did not enjoy the same stock benefits, health benefits, or pensions.
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The best way for an employer to “make itself an unattractive target to CODE,” Egan said, was to be proactive. He suggested training supervisors, talking up the positive aspects of the workplace, or “blow[ing] your horn,” identifying and addressing workplace issues before unionization efforts started, and talking with employees about the downsides of unions.
“Get some easy wins,” he said, “communicate it, take credit for it, and show your employees that you’re on the job, that you understand what their legitimate workplace needs are, and you’re taking the actions both immediate and [planned] to try to address them.”
Another tactic Egan discussed was for employers to proactively identify employees they would want outside or inside of a bargaining unit and adjust their responsibilities to strengthen the case that they either are or are not supervising managers and thus eligible or ineligible for representation by a union. He said that this is only feasible before a union campaign, and while it shouldn’t be the only factor driving these kinds of decisions about workers’ responsibilities, “it’s a factor, and now is the time to make that analysis.”
Talking points Egan recommended for employers included reminding workers about union dues and uncertainty over what will ultimately end up in a union contract if workers do form a union. “It’s like the company picnic, everyone gets a T-shirt, a medium,” he said of union contracts.
A spokesperson for CODE said of the seminar, “The information shared about CODE-CWA seems to be a mixture of ‘okay, boomer’ and lines cut and pasted from articles highlighting what we are doing to help tech and game workers build power and improve their workplaces.”
Jackson Lewis did not respond to a request for comment.
Though the technology and video game industries have seen unionization efforts in the past, companies in the sectors are notoriously difficult to organize. If Blizzard Entertainment were to unionize, it would be the first major U.S. video company to do so, according to Bloomberg.
“The tech industry has always had this stereotype of these freewheeling, super-open work cultures and their liberal politics, but it’s never been tested in the sense of the type of activism we’ve seen over the last couple of years,” says John Logan, a professor of labor and employment studies at San Francisco State University who studies the union avoidance industry. “But arguably they are more anti-union than many sectors of the U.S. economy because they have an obsession with unilateral control of the workplace. They might think, ‘Yeah, unions are great and necessarily in Walmart, or wherever it is, but they’re completely antithetical to what we do.’”
U.S. union membership has dropped significantly over the last several decades. While in 1983, 16.8% of private-sector employees belonged to a union, as of last year, just 6.2% of private-sector employees were union members. Employers, meanwhile, spend more than $340 million per year on union avoidance services like those offered by Jackson Lewis, according to an analysis from the Economic Policy Institute based on reports filed with the U.S. Department of Labor’s Office of Labor-Management Standards.