Several teams of subcontracted YouTube workers went on strike on Friday, to protest a return-to-office policy that they say is an attempt by YouTube’s parent company, Alphabet, to bust their union. The case could have implications that reverberate across Silicon Valley.
Around 40 workers in total, who are directly employed by Alphabet’s outsourcing partner Cognizant, walked out on Friday in a formal strike against what they say are unfair labor practices. Their jobs include verifying musicians’ pages on YouTube, maintaining official music charts, and scrubbing the platform of copyright infringement, for a typical wage of $19 per hour.
The workers, who have been remote since the beginning of the pandemic, petitioned the National Labor Relations Board (NLRB), the federal agency tasked with protecting workers’ rights, this past October to join the 1,200-member strong Alphabet Workers Union. In a complaint in January to NLRB, the YouTube workers alleged that Alphabet and Cognizant announced a return to the Austin, TX, office only after workers campaigned to unionize. They say that a return to the office would force many union members to quit their jobs, as many of them live far away from Austin and work second jobs to cover their living expenses.
A copy of the workers’ NLRB complaint, reviewed by TIME, says the return-to-office policy is an attempt “to chill the union organizing effort.”
“Having the ability to be remote allows us, right at five o’clock, to jump into our other jobs that are necessary because we’re not paid enough,” says Katie Marschner, an organizer of the strike and member of the Alphabet Workers Union, which is representing the workers in their complaint to the NLRB. “In Austin particularly, the musicians and artists that are the backbone of the whole culture of this city are being forced out because of giant tech companies moving in and increasing the cost of living for everyone.”
After being informed of the workers’ intent to strike, a Feb. 1 amendment to the complaint says Cognizant and Alphabet “immediately” offered workers the option to work from home for two extra weeks, on the condition that they agreed to quit Cognizant’s work for YouTube. This alleged offer, the complaint says, was made “in order to discourage employees from engaging in any protected concerted activity.”
A spokesperson for Alphabet declined to comment. In a statement to TIME after the initial publication of this story, Cognizant spokesperson Jeff DeMarrais denied that unionizing workers had been offered incentives to quit. The firm’s return-to-office policy had been “communicated repeatedly and consistently” since before workers petitioned to unionize, he said in a statement to Bloomberg. “The small number of associates who voluntarily left the Austin area and are unable or unwilling to return have the opportunity to be considered for assignments on other client projects at Cognizant,” he added. “There is simply no merit to these claims.”
Potential to set a precedent
Unionized workers and their lawyers believe the YouTube worker case could set a sweeping precedent in Silicon Valley, making Big Tech companies liable for the working conditions of the legions of subcontracted workers they rely on.
The YouTube workers have submitted an appeal to the NLRB to be recognized as “jointly employed” by Cognizant and Alphabet—a designation that could force Alphabet to come to the negotiating table for better pay, working conditions and stability, and be held liable for any unfair labor practices.
Alphabet, which employs armies of contractors via third party firms, has long seen joint-employer designation as a risk to its business. “If found to be a joint employer of a [contractor] by an agency or court, then Alphabet could be liable for employer obligations, as well as acts and omissions leading to employment related legal claims,” says an internal Google document, cited in a 2018 report by the Guardian. (Google’s parent company is Alphabet Inc.)
The case comes as the NLRB is weighing an expansion of its criteria for determining whether joint employer status can be granted. Under the current system, joint employment may only be determined if both companies exercise “direct and immediate” control over employees’ pay, working conditions, or discipline. Under the proposed new rules, these terms would be significantly widened to include any companies that even “indirectly” control employees’ terms of employment. (Even under the previous narrower definition, the YouTube workers have a strong argument to be recognized as jointly employed, an attorney working on their behalf told TIME.)
If two companies are ruled to be joint employers, “both must bargain with the union that represents the jointly employed workers, both are potentially liable for unfair labor practices committed by the other, and both are subject to union picketing or other economic pressure if there is a labor dispute,” says the Society for Human Resource Management, a professional body for HR workers, on its website.
Tech companies have been at the forefront of a labor market trend toward subcontracting labor but retaining direct control, oversight, and surveillance of outsourced workers, according to Frank Kearl, an attorney who represents Amazon worker organizers. “Companies recognize the fact they can avoid a lot of liability by contracting out work to companies that are completely under their control, but they have drawn a fictional line between their corporate entity, and the entity that actually employs the workers,” he says. “You get all the benefits of the labor and the control, without getting any of the liability.”
“By recognizing both Alphabet and Cognizant as our joint employer, the NLRB will be setting a new precedent that will finally allow thousands of contract workers to hold major corporations accountable to their obligations towards workers,” said Neil Gossell, a spokesperson for the Alphabet Workers Union, in a statement to TIME.
Growing scrutiny of Big Tech’s labor practices
The calls for Alphabet and other tech companies to employ their workers directly, rather than at arms length, are gathering steam. Alphabet’s use of subcontracted labor is “a business practice that depresses workers’ wages and degrades working conditions, exacerbates occupational segregation, weakens temp workers’ collective voice on the job, and locks them into a system of permanent temporary work,” says a 2021 report by the National Employment Law Project, an advocacy group. “Tech companies—as well as all other companies that contract out work to intermediaries like temp agencies—should be responsible as joint employers for working conditions for their contracted workers.”
The movement is growing internationally, too. On Monday, a judge in Kenya is scheduled to rule on whether Facebook can be sued in a Kenyan court for alleged unfair labor practices at one of its subcontracting partners. Facebook argues that it cannot be held accountable under Kenyan law because it does not have an official presence in the country; the plaintiff in the lawsuit argues that Facebook was his de-facto employer. The ruling will be a major test of whether tech companies can be held accountable under the legal system of a country where they outsource much of their labor—and could encourage workers in other countries to bring similar suits.
In Texas, the striking YouTube workers make a similar argument. “I think what we’re doing is historic, because we could set precedent for this type of contract between companies that are as big as a nation state, and small agencies that they put all the legal responsibility on for these employees,” says Marschner, the YouTube worker organizer. “We hope that this does change this model, because it’s extremely unfair and exploits workers.”
Update: Feb. 3, 2023
This story has been updated with additional comments from a Cognizant spokesperson.
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