“Pay Your Writers or We’ll Spoil ‘Succession,’” read one sign on the picket line of the Writers Guild of America strike that began in May. “The CEOs Have Yachts. Writers Have Mortgages,” said another.
For nearly three months, the Writers Guild’s 11,500 members have been on strike, putting a halt to production on hundreds, if not thousands, of sets across Hollywood — from film to television to news and beyond. The union is demanding better working conditions and pay, which members say have eroded since the streaming revolution began to replace traditional television a decade or so ago. As one example, writers of successful shows appearing on streaming platforms today are less likely to receive residual payments from syndication, or reruns. Union members also want to shape how and if they work with artificial intelligence in the future — especially AI trained on the writers’ previous creations.
As the strike entered its 10th week, and just before the actors’ union SAG-AFRA joined the picket lines, Harvard Law Today spoke with Sharon Block, professor of practice and executive director of the Center for Labor and a Just Economy at Harvard Law School, about its impact and possible resolution. Block, an expert in labor and employment law and former official in the administrations of Presidents Biden and Obama, says that the strike is part of a growing wave of union activity in recent years, particularly among young people. How it ends, she says, could depend on solidarity from other unions — and could signal labor’s strength moving forward.
Harvard Law Today: What are some of the major concerns the Writers Guild of America want to address through their strike?
Sharon Block: To be clear, I don’t have any inside knowledge, and I don’t represent the Writers Guild. But from what I understand, the major issues in this strike are around fair pay and wanting to have a stake and more of a say in how they’re going to be compensated as their industry changes. At the heart of this is that the industry has changed, but the way that the writers are compensated hasn’t, and it is leaving them in a very different situation than they had been in under previous contracts.
HLT: The strike has now been going on for several months. What effects have we seen so far?
Block: While I think we’re definitely seeing some effects, I don’t think we’re seeing the full effects yet because of the way the industry operates. If you’re a fan of late-night television, you’ve certainly seen the effect already. Those shows have had to shut down because they’re written on a daily basis. You can’t stockpile scripts for those shows. We saw that also with things like the Tony Awards, which is a show that’s usually written at the last minute. While that show did go on, it went on very differently than it had in the past, without a script.
We’ll start to see a lot more effects in the fall, once shows that are scripted and would have been filmed now are not going to be available. You’ll have shows that were expected to come back with new episodes that won’t. At some point, the stockpiled scripts and productions will run out.
HLT: What kinds of things does the National Labor Relations Act of 1935 allow unions to bargain over? Does it allow them to negotiate over the impact of technology on employees, such as the use of AI?
Block: As you mentioned, the law was written in the 1930s, so although some technology was considered, it certainly didn’t anticipate the kinds of technological changes that we’re having now. The law says that workers have a right to bargain over wages, hours, and terms and conditions of employment, though that latter language is not very specific. As a result, it’s up to the National Labor Relations Board to give more meaning to that phrase. Generally, it means things that directly affect the experience of work.
Additionally, there were a series of Supreme Court cases that walled off what the Court referred to as managerial or entrepreneurial decisions, things like how to run the business, and those are not decisions that the union necessarily has a right to bargain over. Now, that isn’t to say that they can’t bargain over them. It just means that they can’t force the employer to bargain over them if the employer doesn’t want to. Their jobs aren’t protected if they go out on strike over those terms. So, it’s really important what kinds of decisions fall in those buckets — whether it’s a ‘term and condition of employment’ or not, because the union will have a lot less leverage in getting those issues to the bargaining table if they’re found not to be terms and conditions of employment.
This issue of what management refers to as ‘labor-saving technology’ is a place where I don’t think we have a really clear answer, where you can say categorically that it is or isn’t a ‘term or condition of employment.’ I think that’s why you’re seeing the Writers Guild really wanting to press the companies on the other side of the table to agree to bargain over this, because they have the potential to have a transformational impact on how the television industry works, and particularly how scripts get written. As a result, I think the union feels it has the potential to have a very big impact on these people’s experience of work and on their livelihoods.
“I think the union sees that it can’t take anything for granted, and that when [changes such as AI] come, they want to be ahead of them, unlike last time.”
HLT: As you mentioned, AI may have the potential to make an impact on the writers’ work, but it isn’t yet being deployed. Why does the union want to get ahead of this technology at the bargaining table?
Block: AI is not the first profound change in the television industry in recent years. This is a union that has lived through this big shift from network television, and even cable TV, to streaming platforms. I wasn’t involved in the last contract negotiations between the union and the companies, but I understand that the union saw that streaming was going to be a big deal, and it tried to get ahead of those issues at that time. There were promises about more discussions, more negotiations, more conversations about how to deal with this move to the streaming platforms but the impact of the move to streaming was never fully resolved.
Once again, the union finds itself in this round of negotiations without a satisfactory answer to how they should be compensated for work that they do for shows that are in that streaming category or, down the road that use AI in the writing process. I think the union sees that it can’t take anything for granted, and that when these changes come, they want to be ahead of them, unlike last time.
HLT: Is this the first major labor action that you’ve seen related to the impact of AI? And if so, how do you think it might set the stage for other industries that AI could potentially disrupt?
Block: This is certainly the biggest, though I don’t know if it’s the first. There have been other strikes recently over big technological changes. Automation has certainly been with us for a long time. In the Boston area, there was a strike a few years ago in the hotel industry, and one of the issues there was around the use of automated check-in. It’s a little difficult to answer the question because the boundaries between these issues are not clear or fixed — what is AI, or generative AI? What is automation? But I do think unions are getting more experienced in bargaining over these kinds of big technological shifts in their industries.
There is some resonance between the writers strike and what we may see in the fall if the auto workers go out on strike, because that is also an industry that is going through big transformational change with the move to electric vehicles. I think what you will see is the UAW, the auto workers’ union, trying to get ahead of what they see coming as big changes in how automobiles are manufactured in this country. My understanding is that putting together an E.V. is very different than putting together a car with an internal combustion engine, and so it will be interesting to see what happens there as well.
HLT: What’s going on in the labor industry more generally? Are we seeing more union activity now than in the recent past?
Block: Yes, there’s a lot going on. We are seeing changed conditions, like the fact that unions are more popular now with the public than they’ve been in decades, according to both the Pew and Gallup polls. We are seeing organizing in sectors that we thought were unorganizable, like at Starbucks and Amazon and other tech and retail-related companies.
My observation is that this is based on a few things. One is just decades and decades of workers — especially middle- and low-wage workers — feeling left behind, watching the top 1%, the top 10% pull away economically, corporate profits going up, and the incredible concentration of wealth and power at the top of the scale. Couple that with, at least in the past couple of years, the tightest labor market we’ve had in a very long time, which gives workers some leverage. When employers are scrambling for workers, they may be more likely to take what workers want seriously and to listen. I also think workers are somewhat less afraid of being fired for organizing — which is unlawful, but we know it still happens anyway. But if you are pretty sure that you can find another job because the labor market is so tight, that helps you with your calculation of whether to put yourself on the line. That’s what you’re doing in this country when you undertake an organizing campaign, because our labor laws are so weak.
The other thing I find interesting about this moment is there’s some data that shows that younger workers are even more supportive of unions right now than older workers, and even than younger workers have been in the past. If you track where some of this unusual organizing is happening, such as in retail and in Amazon warehouses, these are sectors that have a lot of young people working in them. It’s really exciting. My perspective is that I just wish that we had a labor law that did a better job of transmitting or transforming workers’ desire to be in a union into the ability to actually be in a union, and then into the ability to actually negotiate a collective bargaining agreement. That’s the part that I think is still difficult, even with all of this energy and activism and courage that we’re seeing. It is very frustrating as an observer, so I can only imagine how frustrating it is as a worker trying to organize.
HLT: What types of reforms do you advocate to strengthen U.S. labor law?
Block: My Harvard Law School colleague, Benjamin Sachs, and I have been working on a project for a number of years called the Clean Slate for Worker Power project. It has recommendations for how to rewrite our labor laws so that they actually allow workers to build power and have the kind of equitable economy and democracy that they want. The project is housed within the program that we run at the law school called the Center for Labor and a Just Economy.
The way labor law works today is that workers have to organize workplace by workplace. In other words, they can’t organize across a sector or an industry where they could have influence at scale. Labor law today gives a lot of power to employers to try to stop organizing, and to interfere in the relationship between workers and their union. It’s also a problem that our labor law has almost no penalties when employers violate labor law. Penalties have not been changed since the law was first passed, so the disincentive to violate the law is very low. It’s almost malpractice for employers not to break the law in response to an organizing campaign — or at least, many employers seem to see it that way.
HLT: Circling back to the Writers Guild strike, what can history tell us about how this all might end?
Block: The last Writers Guild strike went on for a number of months. My understanding is that the parties are not now at the bargaining table, and that’s not great. I hope that as the fall television season comes upon us, and as the production companies run out of the scripts that they’ve stockpiled, that will give the union leverage. Now we also have the added dynamic of the Screen Actors Guild, which is also considering going out on strike. A strike among the actors would make the situation more difficult for the production companies and the studios. There’s been a lot of solidarity between the actors and the writers’ union during this strike. If you watched the Tony Awards show, you heard a lot of solidarity between the actors in the theater world expressing support for the writers. Certainly, if the Screen Actors go out on strike, that might hasten an end to the strike, and hopefully the actors and writers will be able to negotiate fair contracts that address some of these big looming issues, and not just push them down the road again.
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