Programmer Sues VU Games Over Excessive Work Hours

eToychest writes "According to Reuters, a video game programmer has sued Vivendi Universal Games, claiming he and his colleagues were regularly forced to work extra hours and denied overtime pay. The suit, filed Monday in Los Angeles Superior Court, is one of many filed against companies in the state in recent months, as employees seek to be classified as overtime-eligible to obtain compensation for working more than 8 hours a day or 40 hours a week. The suit seeks payment of back overtime wages plus other damages. This comes the recent announcement that the company said it would cut more than one-third of its staff, excluding Blizzard. Of the things mentioned in the suit, the complaints include no overtime compensation, and employees being ordered to falsify timesheets to indicate they worked shorter days." This report is especially interesting in light of the recent IGDA 'Quality Of Life' survey for game developers.

Mmm...

Wholly unregulated capitalism combined with high unemployment rates! The best way evar to disenfranchise the worker.

the problem is...

Many times when this occurs the employees in question are salaried employees. People who make a flat monthly rate are a bit harder to pay overtime for than your standard hourly employee. Also you will find that places will usually explain to those people that they may be required to work extra hours and perform overtime and this is usually seen in their pay.

Something I would really like to know is if any employers actually pay their salaried workers a bit more knowing they will have to work overtime or if they manage ways to pay overtime or give them extra time off for working the overtime. While quitting may not always be an option as finding a replacement job is not always easy, it is still available as a way to get out of these types of bad situations.

In reality it may come down to forcing states to once again rework labor laws. Since in almost every state salaried workers are exempt from overtime pay they can become slave labor and while some companies may seemingly be able to get away with this, it isn't good for the people they have working for them. While removing the exemption may cost some companies more money, the smart ones will simple hire more workers to lower the overtime load since that would be cheaper than paying someone to work 60+ hours a week every week.

Re:the problem is...

If I recall my employment law class correctly, just being salaried is not enough to make you exempt from overtime. Of course this probably differs state to state. Heres a link http://www.ewin.com/articles/exneot.htm

If an employee does not meet even one of the criteria, he or she is not exempt (non-exempt) from the provisions of the law. ....

Exempt Professional Employees are those employed in a bona fide professional capacity whose primary work requires knowledge of an advanced type in a field of science or learning customarily acquired through a prolonged course of intellectual instruction and study, as distinguished from a general academic education and from training in the performance of routine mental, manual or physical processes;

and/or work that is original and creative in character in a recognized field;

and whose work requires discretion or judgment in its performance; and work which is predominantly intellectual and varied in character and is of such character that the output produced cannot be standardized in relation to a given period of time;

and who does not devote more than 20% of his time to nonexempt activities;

and who is compensated at the rate of $1,150 a month.

Re:the problem is...

With benefits and stuff, the breakeven is probably more around 70 hours (what you pocket is less than half of what you cost a company).

Re:the problem is...

What I've often been told (and I am a game programmer working on a major PS2 title [demonstone.com]) is that "the compensation for your overtime was built into your salary". Of course, they only tell you that after it becomes an issue, not when you are negotiating contracts. In the end, it's the video game industry, and as much as people would like to compare the video game industry with the movie industry, one thing they actually have in common is that they simply would not be possible without the dedication and passion the developers put into them. There is nothing particularly smart or revolutionary about the business end of those industries, it's all in the "little" people who actually do the work. Long story short, you have to want to do it, and it will be hell at times.

Re:the problem is...

While removing the exemption may cost some companies more money, the smart ones will simple hire more workers to lower the overtime load since that would be cheaper than paying someone to work 60+ hours a week every week.

In my case, it's cheaper for us to have our techs work 8 hours a day 7 days a week to push product out than it is to hire another person. Once you factor in benefits, training, paperwork, HR overhead, and all that jazz the cost of a new hire is cheaper.

When I switched from contract to full time employee, I requested a bump in pay to compensate for the fact that I would no longer get time and a half over 40 hours. I was flat out denied. I lose about $800 a month now because of it. I happen to know how much the contract agency was charging the company (I was replacing somebody so they brought me in through a contract agency to train). If they would have given me half the difference per hour extra, it would have actually been more then I was requesting.

What is wrong with these people?

Salaried, nonexempt employees are not paid for their hours, they're paid to get a job done, regardless of the time it takes. That can mean working extra hours in the crunch time, or taking off a couple hours early on Friday to play golf. Do these people really WANT to be hourly employees? I sure as hell don't.

Re:What is wrong with these people?

The problem is, how often do you take time off to play a round of golf? If the company's doing their job viciously, never. Game companies especially, are not kind in the hours dept. They're typically understaffed and over worked. Once a game ships, you might get a week, or perhaps a month, off. Or you might complete Myst 3 and find yourself fired because your bosses aren't competent enough to keep the work coming in at a regular pace.

Basically, employers too often want to work a salaried employee like an hourly without the hassle of overtime.

Yup I noticed this as well

They call it being flexible, you being able to start early, leave late, work weekends and be on call. Of course when you need a morning off to visit the dentist all hell breaks loose.

It sounds nice but in reality there are very few workplaces where the flexibilty goes both ways.

You should try suggesting that if you stayed late that the next day you will be in late. Most bosses don't even seem to get the concept. I did work at one place that was fun and had amazingly long hours (so long I even just stayed overnight rather then spend more time travelling home then sleeping) but after a while I realized that while I had more money coming in I had far far more going out (pizza, late night shopping, etc) then doing regular 40hr work.

Re:What is wrong with these people?

How you can be a non-exempt programmer is beyond me, but that's a different issue.

There's a checklist on conditions that you have to meet to be exempt (which I don't remember all of off the top of my head), but the gist of it boils down to this: you can't be exempt unless you have control.

To be exempt you really have to be a manager (supervise other people) or have near-complete control over how and when you do your job. It is very difficult to *compell* overtime from an exempt employee--it may end up being necessary logistically to get the job done, but that is employee's decision, *not* the employer's. Special circumstances can over-ride this, of course, but if there are "special circumstances" a good percentage of the time, then those circumstances aren't really very special anymore, and the job has probably been mis-classified.

Salaried employees don't get overtime.

I worked at a pizza place while going to college. The managers there regularly worked 60 hour weeks for their salary. 9 hours to manage the business plus about 2-3 hours afterwards to handle closing and settling up the paperwork and bills for the night then dropping the cash off at the bank.

Salaried employees aren't paid x dollars for y time of work. They're paid x dollars to do a JOB.

I worked in the game industry too. Yeah, it was a sweatshop at times. It was also a LOT of fun. The sweatshop attitude wasn't entirely management's fault. They wanted a game in 12 months. We wanted a GREAT game and would regularly spend the extra time coding and experimenting to get the best result. Then, of course, we'd slip and management would hold us to our time. Then we'd get pissed at management and management would get pissed at us and the death march would begin.

The point is that it's not all "evil" management's fault. (Sometimes it is, but not always). But ultimately, the choice to work 80 hour work weeks lies with the individual, not the company.

I also work in the game industry

And I somewhat disagree with your statement.

No one gets in the game industry to make great cash on an 'easy' job. Those that try usually quit when they realize how hard it is. And more money can generally be made doing other programming work, at least before mass outsourcing of such non-game work became common.

So yes, Game programmers typically make games because they want to, first and foremost.

Now, some people are workaholics, and would do the 80 hour thing, or near to it, by choice. But not everyone. Scheduling is pushed by the publishers, and management agree to it, and the programmers have to deal with it.

If a game company schedules a project assuming all staff will want to work 14 hour days for 3 and 4 month stretches, the game will suck.

Now, if a project starts to go bad and you start to have to work a death march that the employees were not told to expect at the outset, then the employer has breached the agreement. Salary is not a commission. Salary is "Perform Task X over time Y for amount of Cash Z". If they change the nature of X or Y, then Z should also change.

My boss compensates for overtime. Lord knows we have to work it, but it is ultimately compensated. Perhaps your company just is not as good as mine?

END COMMUNICATION

Re:I also work in the game industry

The article states that the employees were paid for a 40 hour week, and used time cards, which management pressured them to falsify in order to understate actual hours worked. If the employees held exempt salaried positions, then time cards would not have been necessary.

The problem here seems to be that management wanted it both ways---they wanted to hire the employees as hourly, not salaried workers, but not to pay them for all the hours worked. There would be no grounds for a lawsuit if management had been upfront about this being a salaried, unlimited hours position.

As a european to the americans, O_O

I can't believe some of the posts. You are not paid to work 40 hours you are paid to get a job done? What the fuck?

Imagine this attitude in a factory. You are charged with screwing X into Y and half way down your shift something somewhere breaks and the entire line grinds to a hault. Well obviously lost production, what happens then in america or according to these posters? You don't get paid? You have to work unpaid overtime to make up for the lost time?

All I can say is thank god for unions in europe then, real unions.

There are basically 3 kinds of jobs

• Pure per hour work, think plumbers and such. No such thing as overtime. Imagine if that was true, your plumber could just charge you 100% extra saying he was on overtime :)
• basic worker, you get a X hour contract and are expected to do your job during those hours minus breaks. Extra hours get paid extra.
• Fixed pay, higher positions can have this. Anyone from movie stars to directors get a fixed amount but are supposed to do the job that needs to be done regardless of hours.

It is up to the boss to ensure in all cases that the person they employ actually performs as desired during the working hours but if there is simply to much work for the number of hours then this is not the problem of the employee in the first two salary situations.

Of course now the questions is where these programmers belong. Are they no different from a person working the assembly line or are they a director level employee.

Funny thing is that despite huge differences in working attitude around the world it seems impossible to say wich way is the right way. Japan was at one time a leader and look at them now. America had the assembly line and the highly paid worker with a car and freestanding house but recent news stories suggest america is no longer able to keep that up either.

Europe is to fragmented to make any real conslusions. My own country holland is amazingly well balanced with work in every field from farming to high tech stuff so we tend to feel fluctuations less then say detroit in the US when the car market shifted (we lost daf cars and it was news but it means a few thousand job losses not an entire city going down the shitter).

Just wanted to throw this out...

I've read forums about things like this before, where companies pressure employees to falsify timesheets.

Often, the response from many is "so what, most if not all companies do that" or something similar.

I just wanted to say that the company I currently work for as a programmer started using timesheets, and from day one to now, at all levels, with no exceptions (and I work over 50 hours a week on a regular basis, sometimes over 60) it has always been clearly stated:

"Do NOT falsify your timesheets. If you worked 80 hours last week, write it down. If we don't track time accurately, we don't know if you're all being overworked, and we won't realize we need to hire more people. So BE ACCURATE and don't hide the fact that you're working longer hours."

It should be no surprise, then, to learn that we not only survived the dot-bomb years, but we're growing so fast worldwide we can't find enough qualified people to fill the openings we're creating every day, even though we're hiring a LOT of people.

There's a lesson in there somewhere. ;)

Glad Someone Has Finally Done This

I've worked for a bunch of game companies including Origin, Ion Storm, and elsewhere. And I'm here to tell you, they are _not_ fun: they are the equivalent of 19th century sweatshops. Most places I worked, myself and other programmers routinely turned in 80-100 work weeks -- not because we were excited or invested in our job, but because we were told point blank that we would be fired otherwise. There is practically _no_ compensation. Most managers sneer at the idea of comp days, and the number of folks who've received bonuses or royalties that equalled the amount of time they put into a project is pretty minimal.

Managers, of course, come and go as they please and don't seem to understand why everyone is so unhappy with the situation. Because, well, isn't this a fun place to work? Don't they buy you dinner when you stay late and take you to see that "Star Wars" film? And hey, you get to have action figures on your desk! The fact that your hourly pay works out to be less than the guys in QA is never mentioned.

And to that guy who thinks that this is just the price you pay in order to take off on Friday and "play golf," you're obviously misinformed. No one gets to say "Hey, I'm done for the day, how about a round of frisbee?"; if you don't have work to do, you're instructed to find work to do.

If the joy of making computer games allows you to overlook these issues, then honestly, more power to you. But to act like this guy is somehow biting the hand that feeds him is simply uninformed and ludicrous. I have no idea how the legal rulings will play out, but I wish him all the best. Maybe if one of these companies gets scared, then the rest will preemptively adapt normal business practices (like just about everywhere else), act like grown-ups, and then they really might be fun places to work.
--
Lewis

Re:Glad Someone Has Finally Done This

I worked at 3DO while it was still in business, and I have similar stories to tell.

I think the trick is that game developers originally wanted to stay long hours because they legitimately enjoyed their jobs and wanted to make the best creative efforts they could. While working on Meridian 59 at 3DO, I came in on holidays to put in extra hours to improve it as much as possible. (I loved the game so much that I now own Meridian 59 [meridian59.com].)

However, I think it evolved into something that was just assumed by managers and worked into the schedule. On the last project I worked on at 3DO (before quitting, mind you) we were told to put in long hours by our managers. The word "fired" wasn't necessarily used, but there was a strong element of peer pressure at work. We were given 6 months to finish a game that realistically should have taken about three times that. Of course, we slipped a few weeks and were blamed for that. We were supposed to ship one day before my birthday, but since we slipped my request for time off on my birthday was denied, even though all my assigned work was done and there wasn't enough time on schedule for me to pick up a new task. (It shouldn't come as a surprise that I was never able to use any vacation time while I was working at 3DO, and when I quit I was maxxed out on accumulated time.)

As a footnote: I got the last laugh, though, because even though that game was universally panned by critics, the obligatory "good things" that every game review has to include focused on the sound and the map, things I did the programming for!

Anyway, this issue is one of the reasons why I own my own company now. I still have to work long hours, but at least I'm doing it for my own benefit instead of for the benefit of someone else that profits off of my long hours.

It'll be interesting to see what happens with this lawsuit. Given the number of companies that do require people to put in the long, hard hours to complete projects, this could have far-reaching effects if it goes against Vivendi.

Have fun,

Why isn't this on the front page?

This story possibly has reprecussions for the entire IT industry. Just because it concerns a game company down't mean it should be restricted to the games section.

There are plenty of programmers who have been forced to pull an all nighter while the boss goes home to count his stock options.

Saskatcewan Laws

I went through something similar with an employer not that long ago. I was a salaried employee, supposedly meaning no overtime. However, if I had to miss an hour of work for a doctor's appointment or something, I was docked an hours worth of pay.

After a month or so of this, we started talking to the labour board, and guess what, doesn't matter if we're salaried, we are eligible for overtime for every hour past 40 in a week that we work. Considering that last month I had been averaging about 70 hours a week (not at my own choice), I ended up taking home a lot more than I usually did, and suddenly, they weren't pushing us to work overtime so much. Might have had something to do with the fact that they probably blew their salary budget for the next few months. Also interesting is the fact that in our labour code, you cannot force and employee to work more than 4 hours per week unless it is an unforseen emergency. I don't think an approaching, or past deadline would qualify.

In case your wondering, they did try and designate us as professional employees, and thus get away from paying overtime. However, there are precious few positions/professions that qualify. Programmer, Network/Systems Analsyt, etc. do not qualify.

Hey you!

Quit wasting time filing lawsuits and GET BACK TO WORK!

Brilliant.

Good way to ensure your job gets sent overseas. BC

Am I the only one? Not!

I know I'm not the only programmer out there that isn't a total slave. :)
The normal routine where I work is about 50 hours a week for a non manager programmer. Sometimes less, sometimes more. Mostly not on the more side. I believe we are fairly compensated for our time too.

Of course everyone is assigned in a group and thus stuck supporting a small range of apps and new development. Maybe this helps but it also limits your future opportunities.

Overall I'm betting lots of programmers aren't getting the raw deal we see here. And trust me, I'm enough of a devotee to my off time that when it gets back to 60 hour weeks, I'll be looking for a new job.

Be well,
Tojosan

It's not just game developers...

Abuse of salaried workers has always gone on, but it is becoming more and more endemic within the economy...

Medical interns regularly work 100 hour weeks. So do articling lawyers. So do investment bankers. So do finance research analysts. So do lots of bankers, senior managers, etc.

Personally I blame mutual funds. As more and more people started to buy mutual funds and become educated about the stock market, there was increasing pressure on companies to return higher profits. The easiest way to do so is to squeeze employees, either through overwork or layoffs.

So, theoretically, overworked employees should be getting the same return as they would have from overtime from investments in mutual funds. Unfortunatly, it didn't work out that way. Institutional investers got most of the gains, or at least those left after senior management was done siphoning them off for themselves.

OBPersonal Experience: I used to work for Nortel Networks back when it was still Northern Telecom and BNR. We used to get paid overtime as software developers. Then they took away the overtime, and the hours stayed the same. Then they took away the $15,000 annual compensation for carrying a pager and being on call 24/7, saying it was "part of the job." All of this real compensation was replaced (in theory at least) by stock options.

When I left, I had a ton of options at about $180 a share while the stock was at around $30. Same year I left the CEO got many millions in bonuses and stock options (that somehow weren't underwater.)

Nowadays, my attitude is that I'll work the unpaid overtime if it (a) needs to be done and (b) it's my fault. But when managers come calling saying "we need you to work overtime because {our schedule was unreasonable | we mistimed the market | Our forecasts were wrong | We need to boost the stock price}," I just go home.

Re:Last time I checked

Are you kidding? If the option is "work overtime or lose your job", how many people are going to quit? How many are in a financial position to do so?

Don't forget too, that we're in a recovery period in the US economy right now, and a lot of these violations occurred during the recent past where jobs - and especially game programming jobs! - were very hard to come by.

Would you quit your job with no other job prospects and little or no savings just because you didn't want to work some overtime?

Employers have much more power than you apparently think.

Re:Last time I checked

The sad thing is, while the game industry can be compared to the movie industry in terms of dollars many game programmers are virtually sweatshop workers.

Success stories like Sierra or iD or Lord British are yesterday's news. Today the money is earned by the programmer and taken by the publisher. Maybe the music industry would be a smarter comparison than the movie industry. Business is able to take the lion's share from the talent once again because a good product is nothing without advertising and distribution.

Re:Last time I checked

Of course he can quit. That isn't the point of the article. The point is that the managers of the company were forcing non-exempt employees to work more time than they reported. It's ILLEGAL. Furthermore, IANAL, but I bet it qualifies as tax fraud as well.

Now, if these programmers were salaried, exempt, employees, the managers would be in a better position. But this wasn't the case.

The simple fact of the matter is that labor laws require employers to pay overtime to non-exempt employees. If the employee is right and managers were 'tweaking' the hours, it's illegal, and give the guy filing the suit credit, he had the balls to point it out.

Of course they fail to point out the other side of the matter, which is that maybe the managers were doing this because they were being squeezed by the higher ups who were putting pressure on them to farm the work out to India or something. I guess time will tell.

Re:Last time I checked

The point is that the managers of the company were forcing non-exempt employees to work more time than they reported. It's ILLEGAL. Furthermore, IANAL, but I bet it qualifies as tax fraud as well.

Absolutely it is tax fraud. Payroll tax fraud. They didn't pay FICA or FIT on any of those unreported wages, and that'd be at least 30% of the gross value of the wages. That's one reason the government tends to come down very heavy on these kinds of things--it's costing them serious money.

Don't ever mess with payroll taxes, by the way. As a company, you can get away with not paying your bills, or not paying your employees, or even not paying the bank. But if you ever miss paying your payroll tax deposit, they will throw you under the jail.

Re:Last time I checked

Don't ever mess with payroll taxes, by the way. As a company, you can get away with not paying your bills, or not paying your employees, or even not paying the bank. But if you ever miss paying your payroll tax deposit, they will throw you under the jail.

I wish you were correct. I really do.

The bad thing about not paying your payroll taxes is this: You're keeping your business running by stealing from your employees. As a business owner, the employee contribution to payroll taxes (known as the "trust fund" portion of the taxes) ISN'T YOUR MONEY! It's money that's been earned by your employees but that they let you hold onto because you've promised to send it in to the government on their behalf. (See? That's why it's called "trust fund" money; your employees trust you to send *their* money to the govt.)

If you don't pay your payroll taxes, you're a thief. Plain and simple.

If you ever hear that your employer is in trouble to non-payment of payroll taxes, look for another job immediately. Your destiny in your current position is too highly influenced by a lying crook.

Now, as for your "under the jail" comment - it's just not true. Employers can get pretty darn delinquent on payroll taxes before the IRS notices. When they do notice, you can drag out the collection process to a ridiculous degree thanks to the neutering the agency got as a result of all that bogus testimony to Congress back in 1998. The resulting statute, RRA98, provides so many mandatory administrative reviews and expanded taxpayer rights (rights to throw a monkey wrench into the machinery of legitimate tax collection, that is) that a smart lawyer can buy you ages before the government comes and shuts you down.

It happens eventually, but that "throw you under the jail" comment is a tad overstated.

Pity, that.

Re:It's about time ... but

The way I see it. You can complain, win your court case, lose your job, ask people if they'd like fries with that.
or
You can work your long hours and take every ounce of free time for yourself during the day, just making sure to do a bit of a better job than everyone else.

Another possibility is to band together with other IT workers, domestic as well as international, and demand fair pay for a day's work.
A unified group voice is the only counter to the dollars that management has at their disposal to throw around at election time. For me, I prefer to not be a sheep.