Video game and online communities offer opportunities for inclusion that some individuals may not find in the outside world. Connecting with others online and collectively playing a video game together can allow people to develop strong interpersonal relationships while also allowing some to feel a sense of belonging. One would think that the largest video game publisher in the U.S.[2], Activision Blizzard, would aim to present the same type of welcoming workplace environment that their games bring to their users. However, as recent legal developments entail, the company, which owns popular game titles such as “World of Warcraft”, “Call of Duty”, and “Overwatch”, has been doing anything but care for and respect their employees.
On November 17th, Activison Blizzard (AB) experienced its second employee walkout in the past six months.[3] The concerted employee action, which called for AB CEO Bobby Kotick’s resignation, took place in response to multiple lawsuits against the video game developer as the company faces challenges by California’s Department of Fair Employment and Housing (DFEH)[4], the Securities and Exchange Commission (SEC)[5], and the National Labor Relations Board (NLRB).[6] In tandem with these suits, AB settled a separate lawsuit from the Equal Employment Opportunity Commission (EEOC) for $18 million in which the EEOC accused the company of subjecting female employees to sexual harassment and retaliating against them for complaining about such harassment.[7]
The DFEH suit alleges the AB workplace environment is akin to a “frat boy” culture where women were subjected to constant discrimination[8] while the SEC has subpoenaed the company to release workplace documents and other communications between senior executives after reports noted Kotlik knew about various sexual misconduct and harassment allegations and was himself a perpetrator.[9] Activision employees engaged in events called "cube crawls" in which they would get drunk and harass female employees during work hours.[10] One female worker allegedly died by suicide due to pressure from a superior, with whom she had been sexually involved, during a business trip.[11] Lastly, the NLRB posits that AB "threatened employees that they cannot talk about or communicate about wages, hours and working conditions" and also "engaged in surveillance" and "interrogation" of employees advocating for better working conditions.”[12]
The employee walkout is fantastic display of Activision Blizzard employees’ disapproval of how their employer has treated and painted loyal workers. To further add fuel to the employee fire, the Activision Blizzard Board of Directors released a statement backing Kotlik’s actions while applauding the CEO for “appropriately addressing workplace issues brought to his attention.”[13] Such an emphatic workplace demonstration might lead some to wonder if employees could be disciplined for joining in on the walkout. But according to the NLRB, these protesting employees are able to voice their concerns under the National Labor Relations Act (NLRA).
The NLRA provides protections to employees who engage in protests with coworkers related to their own working conditions.[14] Specifically, under section 7 of the NLRA, “employees shall have the right…to engage in…concerted activities for the purpose of “mutual aid or protection.”[15] The “mutual aid or protection” element “focuses on the goal of the concerted activity,” specifically, “whether there is a link between the activity and matters concerning the workplace or employees’ interests as employees.”[16] Further, the NLRA protects "concerted activities" whether they take place before, after, or at the same time employees make a demand of their employer.[17]
In determining if an activity is for “mutual aid or protection”, the NLRB uses an objective standard – essentially, employees’ subjective motives are irrelevant.[18] Ultimately, the “mutual aid or protection” clause protects employee efforts to “improve their lot as employees through channels outside the immediate employee-employer relationship”.[19] Here, it is likely the Activision Blizzard employee walkout falls within the scope of the NLRA’s “mutual aid or protection” clause and employees are legally allowed to protest their employer because the employees seek better working conditions, including sexual harassment-free workplaces.
In light of the recent legal developments and workplace activity, Activision Blizzard faces even more criticism as two of the company’s biggest game titles’ release dates have been delayed. Citing employee turnover due to the active lawsuits and investigations, AB conceded that release dates for both “Diablo 4” and “Overwatch 2”, which were scheduled for 2021 and 2022 releases respectively, have been pushed back beyond the 2022 calendar year.[20] Amidst its legal issues, the company will have to carefully manage one of its professional esports leagues, the Overwatch League (OWL), as the league plans to play on an early build of its self-titled sequel.[21] Moving forward, Activision Blizzard faces an onslaught of legal issues accompanied by muddy waters surrounding its delayed game releases and the controversial decision to begin 2022 OWL play on an unreleased title. If the employee walkout wasn’t enough of a hint, it is definitely time for Activision Blizzard to shut-down its game of workplace intimidation.
References:
[1] Dani Anguiano, Activision Blizzard employees walk out over harassment and ‘frat boy’ culture allegations, The Guardian, (July 28, 2021), https://www.theguardian.com/us-news/2021/jul/28/activision-blizzard-walkout-allegations-harassment-frat-boy-culture.
[2] Kirsten Grind and Sarah E. Needleman, SEC Is Investigating Activision Blizzard Over Workplace Practices, Disclosures, The Wall Street Journal, (September 20, 2021), https://www.wsj.com/articles/sec-is-investigating-activision-blizzard-over-workplace-practices-disclosures-11632165080.
[3] Rishi Iyengar, Activision Blizzard CEO faces pressure from employees to step down after report, CNN.com, (November 17, 2021), https://www.cnn.com/2021/11/16/tech/activision-blizzard-board-bobby-kotick/index.html?utm_content=2021-11-16T22%3A52%3A04&utm_term=link&utm_medium=social&utm_source=twCNN.
[4] Id.
[5] Grind and Needleman, supra.
[6] Id.
[7] Iyengar, supra.
[8] Id.
[9] Jason Schreier, Twitter.com, https://twitter.com/jasonschreier/status/1460695834677366794?s=20
[10] Daniel Wissener, Activision says Calif. agency lawyers may have conflicts in sex bias case, Reuters, (October 20, 2021), https://www.reuters.com/legal/transactional/activision-says-calif-agency-lawyers-may-have-conflicts-sex-bias-case-2021-10-20/.
[11] Id.
[13] Schreier, supra.
[14] The National Law Review, Walkout Wednesday—What Rights Do Employers Have?, (August 10, 2021), https://www.natlawreview.com/article/walkout-wednesday-what-rights-do-employers-have.
[15] 29 U.S.C. § 157
[16] Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip op. at 3 (Aug. 11, 2014).
[17] NLRB v. Washington Aluminum Co., 370 U.S. 9 (U.S. 1962).
[18] Michael Correll, Responding to employee advocacy and workplace walkouts during times of protest, Employment Law Watch, (July 21, 2020), https://www.employmentlawwatch.com/2020/07/articles/employment-us/responding-to-employee-advocacy-and-workplace-walkouts-during-times-of-protest/
[19] Id.
[20] John Carson, Overwatch 2 And Diablo 4 Are Being Delayed, Most Likely Out Of 2022, Game Informer, (November 2, 2021), https://www.gameinformer.com/2021/11/02/overwatch-2-and-diablo-4-are-being-delayed-most-likely-out-of-2022.
[21] Id.