The IndieBeat: Workplace protection for indie developers

When indie studio MidBoss released its narrative adventure Read Only Memories: 2064, it was praised for its inclusivity. It starred LGBTQIA characters and explored queer relationships. For some players, it was the first time they could choose their own pronouns. Its creator and MidBoss founder Matt Conn also started GaymerX, the first game event for the community.

Then in March, a series of allegations fractured the idea that MidBoss and GaymerX had successfully created a safe space for queer folks in games. Former MidBoss employees accused Conn of sexual harassment, improper wages, and promoting a toxic workplace. When Conn stepped down as CEO, similar allegations were leveled against president Toni Rocca, who was taking his place. Conn and Rocca both denied that they had ever sexually harassed anyone, though Conn admitted that he had made mistakes when it comes to paying employees.

Eventually, both Conn and Rocca left both of the organizations, which named new leadership and promised to implement new payroll and diversity training initiatives moving forward. Though that chapter might be closed for MidBoss and GaymerX, this story has unearthed the unpleasant reality that many independent developers have to face.

Developing games is a grueling and expensive process, and many indies are operating on a microbudget. In MidBoss’s case, it sounds like that unfortunately meant underpaying team members. Former MidBoss employee Ellen McGrody says that she was paid “less than minimum wage,” and former MidBoss software engineer Christopher Lindgren said he knew coworkers who were under-compensated.

Last year, 57.3 million people in the U.S. worked as independent contractors, an 8.1 percent increase from 53 million in 2014. When someone isn’t a full-time employee, it leaves them vulnerable — they’re not protected by the Fair Labor Standards Act, for instance, which requires employers to pay at least minimum wage and overtime. However, people have other ways they can protect themselves when they’re freelancing for a studio.

Leaving a paper trail

Above: MidBoss’s narrative adventure game Read Only Memories: 2064.

International Game Developers Association executive director Jen MacLean says the most important thing indies should do is to write up a contract that details exactly what they’ll be doing for a studio, how many hours they’ll work, and how much they’ll be paid. This is also an upfront opportunity to go into the specifics of what an employee’s boundaries are. For instance, they might not want the employer to contact them after a certain time of night, or they might have a cap on the maximum number of hours they can work during the week.

“That kind of agreement gives an indie developer a lot of protection,” said MacLean in a phone call with GamesBeat. “It helps them avoid misunderstandings about what compensation will be, what deliverables will be. It’s something a studio should want to have in place as well, because it protects both parties.”

MacLean says that a contract is crucial even if you’re “talking with your best friend of 20 years,” because it will clearly delineate who is doing what on a project.

Along with laying out specific guidelines for what the work will entail, the contract should also contain information about what will happen if the employer doesn’t pay. New Media Rights executive director Art Neill says that you want a clause about going to small claims court in case you end up in a dispute. His organization is a nonprofit associated with the California Western School of Law, and it offers paid and pro bono legal advice to game developers, artists, musicians, and other creators.

“You may be forced to mediate, or arbitrate, or even sue,” said Neill in an email to GamesBeat. “You should always try to first informally approach the other party with your request and provide documentation. Of course the most important thing to know is that there are ways to avoid payment disputes before they happen. For instance, make sure you’re being paid up front for your work, or at least in various stages according to the size of the project can ensure that you hold the cards in a payment dispute because you haven’t put out the work before you’ve been paid.”

IGDA is compiling resources for developers that it hopes to release later this year. This will include what a basic contract should look like as well as how to talk to a lawyer if you need legal advice. The latter can be especially tricky because of how expensive getting an attorney can be. But some lawyers offer free consultations so developers can at least test the waters and see how much it would cost to get a contract reviewed or if they plan on taking a studio to small claims court. And occasionally others, like New Media Rights, do pro bono work. MacLean recommends checking with the Equal Employment Opportunities Commission and The Video Game Bar Association as other potential resources.

Game Workers Unite is also working on setting up a legal defense fund. The volunteer-run organization is a grassroots effort to unionize the game industry, which it believes can help protect indies from problems like low wages.

“There really isn’t much in terms of supporting people when it comes to poor labor conditions in the industry,” said GWU cofounder Emma (who refrained from using her full name) in a phone call with GamesBeat. “That said, we’re trying to start some of these things. We’re trying to start a whistleblowing website, where people can safely submit their horror stories working at certain studios, whether it’s regarding labor conditions or in-person harassment and abuse — things like that. We want to make sure there’s an outlet for people in our industry to share openly the things that they’ve experienced, so we can help raise awareness of these issues at any company.”

Emma says that unionizing could give developers more power to negotiate better contracts for themselves. This won’t “magically flip” the switch and make things instantly perfect, but it could be a step in the right direction to improve things like crunch time and under-compensation.

Red flags

Above: IGDA executive director Jen MacLean speaks at the Boston postmortem about unionization.

Whenever a studio abuses its power, it’s shocking. But the situation at MidBoss stood out because the company had purported to be an inclusive, safe place for people who are already vulnerable. The LGBTQIA community still faces employment discrimination in the U.S., and many are in financially unstable situations. This makes it even harder for people to speak out about abuses they may have witnessed in the workplace.

Emma says to watch out for emotionally manipulative language from employers, which can guilt people into not saying anything about under-compensation.

“A lot of companies will use language of family or passion to actively build up this idea of, ‘Well, we’re all family, right?'” said Emma. “These people are your employers. They’re not your family. Often that language is used to exploit people, so they feel guilty when they’re fighting for their own rights in their workplace. This also relates to being able to get your own distance when you’re not at work, among other issues.”

MacLean says that requests for any kind of physical contact are inappropriate, and she advises that developers ask a lot of questions. If the studio isn’t willing to answer them, then it should be a warning sign.

“People who don’t want to disclose finances. That’s a big red flag,” said MacLean. “As a developer, you have a right to ask if you’re going to be paid regularly and where those funds come from. If a studio doesn’t want to disclose that, that should be a big warning sign. Asking about things like turnover, asking about people who have done this job previously and why they aren’t still there, those are good basic questions to ask.”

If you experience harassment at work, Neill recommends looking for an attorney or filing a complaint with the Equal Employment Opportunities Commission. Even if you can’t afford to get a lawyer, both Neill and MacLean say that documentation is crucial.

“It’s important to document harassing treatment, particularly moments where you’ve been offered something in return for submitting to the harassment (a quid pro quo),” said Neill. “Also document any time you are treated with behavior that creates a hostile environment. Take screenshots of texts, Snapchats, possibly even print out emails and any other evidence you need to document the harassment. Take really good notes of behavior/comments directed at you and others. Note the date, time, and any witnesses. Keep your documentation and notes on your own personal devices, not your work computer, if possible.”

MacLean refers to “The Rock test” as a way to gauge if someone is behaving disrespectfully toward you. It’s a snarky Medium post that advises men to pause before saying something to a woman and ask themselves if they’d risk saying the same thing to actor and former WWE wrestler Dwayne “The Rock” Johnson.

“It lays out exactly why this is a good gut check for anybody to use about whether they should be made uncomfortable by something their gut is telling them isn’t right,” said MacLean. “Also, for people who might say, gosh, I don’t know if I can say this, I don’t know if I’ll inadvertently offend somebody, well, does it pass ‘The Rock test’?”

Making a better workplace

Above: Warhammer 40K dev Neocore says that its tweet about working “90-plus hour weeks” was a joke.

The conversation around workers’ rights in the games industry has been top-of-mind, and it’s not just from employees.

“We’ve had several owners of studios or heads of studios, directors and things, talk to [GWU] and say, ‘We have this studio, and we want to make sure our workers are fairly represented. What are the steps we can take to help further this?'” said Emma. “There are employers out there who are allies.” Though, she cautions: “But it’s important to make sure that worker safety and worker voices come first, always. I would say never assume best intentions of any employer. They wield almost total power over you.”

For employers who are setting up their first studio, Neill suggests talking to a business attorney and really take the time to make sure everything is aboveboard.

“You need to establish all the correct business practices to make the business successful,” said Neills. “Employment law is an extremely complicated area, with many overlapping local, state, and federal laws. There are many places where you can be tripped up. Even if you get things right, people can still give you problems, so it’s good to have an employment attorney on hand.”

MacLean says developers should also talk to human resources professionals. They don’t necessarily have to hire one on full-time, but it’s important to grasp an employer’s legal and ethical responsibilities. She also says it’s important to establish culture immediately. For some homework, she recommends the books The Hard Thing about Hard Things by Ben Horowitz and Johnathan and Melissa Nightingale’s How F*cked Up Is Your Management? which come from the tech startup world but have good general advice.

“Often people think culture will come when they’re bigger. They don’t realize that from their first decisions, they’re establishing a culture for their company,” said MacLean. “With their first hires, with what they tolerate and don’t tolerate, all of those things contribute to a culture. Culture is not something that magically happens when you hit 10 or 15 people. That applies not only to studio leaders but also to individual leaders as well. When you decide what behavior you’ll tolerate from your management team, you are also challenging or reinforcing a culture. You’re doing that not only for the place you work at but for your life in general.”

And for employees, Emma says that it’s understandable to be afraid of broaching unionization with colleagues. However, she says this is based on misconceptions of what exactly a union is. She recommends just getting the conversation started about the workplace conditions with a trusted coworker.

“It doesn’t even have to be as explicit as, ‘Hey, we should form a union,’ or ‘Hey, the company is doing this and this.’ Just little things day to day,” said Emma. “Make sure you’re building solidarity among your co-workers. The thing is, a lot of people think unions are this extractive third party to the issues of labor and, essentially, corporations. But it’s really not. A union is just the people in that workplace standing together.”

Most game developers get into the industry because they’re passionate about their craft. But we’ve seen how that can lead to exploitation and unhealthy work conditions. It’s important for the industry to develop infrastructure to support them, and nothing is more valuable than making sure workers are being treated the right way.

“We need to make sure we’re putting in place a culture that retains that talent,” said MacLean. “That’s where sustainability comes in. As an industry we burn far too much talent out. We need to recognize that when somebody leaves the games industry, we’re taking a big loss immediately, but also in terms of their future contributions. Those are ideas that will never be made, pieces of art that will never see the light of day, games that we’ll never have a chance to play. That harms us all.”

IndieBeat is GamesBeat reporter Stephanie Chan’s weekly column on in-progress indie projects. If you’d like to pitch a project or just say hi, you can reach her at stephanie@venturebeat.com.