Epic Games hit by NLRB discrimination complaint by former job applicant

The National Labor Relations Board is taking a look into Epic Games after tech labor activist Cher Scarlett filed a complaint against the company following her rejection in the hiring process.

Scarlett shared information about her complaint with The Washington Post, which reviewed e-mails and documents related to the case. At the core of her complaint is the allegation that after she provided Epic Games with a filled-out "request for activity" form documenting her continued activism with Apple employees Scarlett has become an active voice for employees at Apple and Blizzard Entertainment in speaking out about poor working conditions.

She'd been given the form after completing four rounds of interviews, with her recruiter stating that they wanted to "get a head start on the process." Two days after supplying the it, Scarlett said the recruiter from Epic Games let her know the company was going forward with hiring another candidate.

On Twitter, Scarlett wrote that in a follow-up e-mail to Epic Games (after she said she spotted the job posting re-listed in January), her request for activity form "[was] explicitly mentioned" in the company's response.

In a statement to Game Developer (also sent to The Washington Post), Epic Games spokesperson Elka Looks disputed this description of events, saying that by the time Scarlett had returned the form, it had decided to hire a candidate who "scored higher in their interviews."

"The form did not play any role in our decision," she stated. "Candidates are asked to fill out an outside activity form over the course of the recruitment process, and providing the form to a candidate is not a confirmation that an offer is forthcoming." She stated that Epic's recruiters were already aware of Scarlett's labor activity thanks to her website and social media feeds.

Scarlett disputed this claim, stating that the form provided to her explicitly said that it is required "when an offer is about to be made."

It appears a core question in this case then is if supplying this form to Scarlett at this point in the process was appropriate—and if Epic has repeated this practice with other active labor employees. After The Washington Post published its story, Scarlett claimed this "also happened to someone else," and that the NLRB assured her she had a case.

Looks told Game Developer that Epic is "not aware" of the other incident described by Scarlett. 

USC Gould School of Law Lecturer Thomas Lenz, who previously worked as a National Labor Relations Board attorney, described Scarlett's complaint as a "common" type of NLRB allegation, and that he expects the NLRB to examine Epic Games' hiring practices, history, and to compare Scarlett's qualifications with the hired employee. "

If an applicant shows protected activity and equal or better qualifications than the person hired, factors including timing of the decision, communications if any about protected activity will be relevant," he explained. "Where an employer can show it would have taken the same action (not hiring) based on job related standards and regardless of protected activity, the employer be in a position to defeat discrimination allegations in investigation or litigation."

We asked if Scarlett's claim about this labor discrimination "happening" to someone else would impact the NLRB's thinking. Lenz said it would only matter if that individual also filed a complaint with the NLRB. "Since NLRB does not initiate charges, it is required that someone come forward to file a charge and to present supporting evidence on the allegations raised," he said.

"It may be relevant that someone else raised similar allegations but it does not necessarily mean that NLRB causes a charge to be filed or scope of investigation to expand."

Epic Games' labor woes have been much more quiet compared to other companies like Activision Blizzard. In 2019, developers came forward to describe crunch conditions working on updates for Fortnite, and in 2021 it drew employee ire over a decision to claw back an "every-other-Friday-off" policy that had been beloved by staffers.