Last month, employees of the crowdfunding company Kickstarter announced plans to unionize. The employees in support of unionization, who are supported by Office and Professional Employees International Union Local 153 and refer to themselves as Kickstarter United, released the following statement to the Verge:

Kickstarter United is proud to start the process of unionizing to safeguard and enrich Kickstarter’s charter commitments to creativity, equity, and a positive impact on society. We trust in the democratic process and are confident that the leadership of Kickstarter stands with us in that effort. Kickstarter has always been a trailblazer, and this is a pivotal moment for tech. We want to set the standard for the entire industry. Now is the time. Come together. Unionize.

Just days after Kickstarter United’s announcement, however, several senior level Kickstarter employees circulated a memorandum to all staffers criticizing the effort to unionize. Those uncertain about unionization expressed that they are “owed more detail from the union organizers as to what their specific demands are and how a union will address them.” The memorandum stated that the effort to unionize did not “feel transparent or fair” because of the union’s “join first, ask later approach.”

The Opposition

In addition, those in opposition of the organization effort expressed that unionization was historically for “marginalized workers,” not employees such as those at Kickstarter who are paid more than twice the average income in New York City and afforded benefits such as “flexible work from home hours, above-and-beyond industry standards for parental leave, 25+ days of paid vacation, a wellness stipend, a bike stipend, an education stipend, a weekly catered lunch, and a great deal of other benefits.”

As of the date of publication, an election petition had not yet been filed with the National Labor Relations Board. Those in the tech industry will be watching closely for any developments as the efforts at Kickstarter could signal a shift toward increased unionizing efforts in Silicon Valley, Silicon Beach and other companies within the tech industry.

The Tech Industry’s Brief History With Unionization

While some companies in the tech industry have dealt with unions in some capacity, those organizing efforts have been limited to lower-paying positions such as cafeteria workers contracted to work at Facebook Inc. or Silicon Valley security officers. The tech industry is seemingly an untapped industry where union presence is more of a rarity than the norm.

The Teamsters Union, however, appears to be making a push towards unionizing more employees in the tech industry. The Teamsters have a web page dedicated to “Tech Industry Organizing,” where the Teamsters pledge that it “has embarked on an ambitious campaign to organize workers in the tech industry” and “is leading a growing movement of workers challenging income inequality and worker inequality in the tech industry.”

The efforts at Kickstarter may signal a new trend of higher-paid employees in the tech industry such as software engineers, computer programmers or product managers attempting to unionize. The real inquiry that Kickstarter and other employers concerned about unionizing efforts should make is regarding what the employees are seeking in electing a union.

If employees are looking for higher wages given the high costs of living in Silicon Valley, Silicon Beach and New York (where Kickstarter is headquartered), a union may or may not be able to negotiate higher wages and/or benefits for its employees. Employers are typically adverse to unions, as management generally have less flexibility and control over a unionized workforce.

Are Unions What the Tech Industry Wants?

If employees are more concerned about company strategy, political stances being taken by their employer or who their employer is doing business with, unionizing will not likely address these issues. Under Section 2(5) of the National Labor Relations Act, a “labor organization” is defined as “ any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”

Company strategy or having a voice in an employer’s strategic decisions that are not related to an employees’ wages, benefits or working conditions are not terms that can be negotiated through collective bargaining.

As the tech industry matures, it is natural to expect that it would experience growing pains. Companies that were once startups are now Fortune 500 companies with hundreds if not thousands of employees. Campuses that encourage creativity, free lunches and other perks are no longer unique or coveted, but an expected standard. With such growth, employees may begin to feel less like they have an integral part in the growth of their startup and more marginalized.

What Employers Should Be on the Lookout For

Employers within the tech industry should keep an eye out for signs of unionizing activity. In the age of social media and cell phones, signs that employees may be looking to organize include text messages, emails and social media posts about unionizing. An increase in turnover rates or negative exit interviews are also potential warning signs of possible unionization efforts. Employers should also take notice if employees begin asking an unusually high number of questions about company policies, benefits and pay.

Employers should also consider conducting a risk assessment by surveying their workforce and their relationship with management. Disconnects or animosity between management and their workforce is a common reason employees engage unions for representation. It is imperative for upper management to gauge and understand how employees feel about working for their employer. Identifying and addressing key areas of employee discontent will go a long way towards staving off attempts by employees to organize.

As published in Law360 on April 19, 2019.