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Why is the games industry so burdened with crunch? It starts with labor laws.

(The Washington Post illustration; iStock)

Over the last 20 years, mandatory overtime in the video games industry has been called many things: a crisis, a trap, a death march, and, as a pair of Canadian researchers put it in an early study of the phenomenon, “rust on the ‘digital sublime’” of game development. Whatever you call it, the implication is clear endless and uncompensated overtime, more commonly known as “crunch,” is a fundamental threat that could corrode the entire industry from the inside out.

According to a 2019 of survey from the International Game Developers Association, 40 percent of game developers reported working crunch time at least once over the course of the previous year. For the majority of these developers, crunch wasn’t just a few extra hours or a long weekend, but at least 20 extra hours on top of their standard 40-hour workweek. Just 8 percent said they received extra pay for those hours.

Some have blamed crunch on bad managers or unrealistic deadlines. Others point to unreliable game engines and a Cold War-era tax credit system that encourages the use of experimental new technology and software, or else it’s a product of the competitive masochism that can emerge in cultures predominated by young men with few social attachments or family obligations. Few people point to the law as a primary cause of crunch, but in many cases that’s the best explanation.

Crunch has endured for so long in the games industry simply because it’s legal. At both the federal and state level, computer professionals who earn above a set annual salary — the exact figure varies from state to state — are considered exempt from overtime laws that would otherwise require studios to pay them extra for extra hours in the office. This has ensured that whenever problems arise during game development, the easiest and cheapest solution is to have developers stay late and come in on the weekends.

“Large publishers and console manufacturers set up very rigid contracts that development studios have to follow,” said Johanna Weststar, co-founder of the IGDA’s Quality of Life research group and an associate professor specializing in labor relations at Western University in London, Ontario. “That introduces what’s called the iron triangle in project management, where you have a set budget, a scope, and a set schedule, and the development team has to deliver within those parameters.

“Typically the work hours of the developers themselves are the most flexible piece in that triangle, but only if the work is free. If you have to pay overtime, that doesn’t help you get back on schedule because now you’re going to be over-budget. So, it was really imperative that the industry could achieve these labor law exemptions around overtime.”

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Many of these exemptions have been part of America’s labor laws for decades. In 1938, the Fair Labor Standards Act created the federal minimum wage, prohibited people younger than 14 from working, established the 40-hour workweek and eight-hour workday, and required that people receive overtime pay at a rate of 50 percent higher than their normal wages. The FLS also included a wide-ranging list of industries and circumstances that would be exempt from those protections.

As the video game industry quickly grew in the 1980s and 1990s, many developers were counted as overtime exempt under an existing rule for other white collar workers. In California, which had become a major hub for gaming companies, including Activision, Electronic Arts, SEGA, Blizzard, THQ, and Sony Computer Entertainment of America, game developers were covered under a set of exemptions for general professionals, a group that also included teachers, accountants and optometrists. So long as workers in these fields made at least double the state minimum wage — just $5.75 an hour in 1998 — and their work matched a specific set of criteria spelled out by the state, they would be ineligible for overtime protections.

In 2000, the state created a separate exemption to apply just to computer professionals and dramatically increased the wage requirement to qualify for the overtime exemption. The new cutoff started at $41 an hour, or $85,280 a year, with annual increases tied to the consumer price index, far above the average developer salary of $61,403, according to a 2001 survey from Gamasutra and Game Developer magazine. In 2004, the federal government followed suit by creating a specific exemption rule for workers in “computer-related occupations,” though the wage threshold was set at just $455 a week, or $23,660 a year.

Shortly after, a number of overworked game developers began to notice they might have some legal options, and a number of class-action lawsuits were filed against gaming companies. The first was filed by Jamie Kirschenbaum, an artist working on the PlayStation 2 version of “The Sims 2,” who alleged that he and hundreds of other artists working at EA had been illegally classified as exempt employees and deprived of overtime pay. A few months later, another case sprang from a viral LiveJournal post, titled “EA: The Human Story,” which detailed a seemingly endless a crunch cycle for programmers at another EA studio in Los Angeles.

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A mutual connection introduced the anonymous developer described in the post, who would later be revealed as Leander Hasty, to Thomas Urmy Jr, a partner at the Boston law firm Shapiro, Haber, and Urmy LLP.

“What they were doing was pretty egregious,” Urmy said. “The hours these people were working — I remember one of our class members, we were taking his deposition to describe what he did and he’s talking about sitting at his work station 18-plus hours a day.”

Urmy helped Hasty organize a class-action suit on behalf of hundreds of other EA developers to sue for unpaid overtime wages, and over the next two years, he helped file suits against Activision, Sony, Angel Studios (now Rockstar San Diego), and another case against EA on behalf of artists working in Florida. All but one case resulted in large settlements — $14.9 million and $785,000 with EA, $8.5 million with Sony, and $2.75 million with Rockstar on behalf of Angel Studios. The settlements also included the reclassification of hundreds of workers as nonexempt, meaning they would have to be paid for any overtime hours worked going forward.

What might have been a turning point for developers was erased when in 2008 then-Governor Arnold Schwarzenegger signed a new set of overtime exemption rules for computer workers in California, shifting the overtime exemption down from $49.77 an hour or $103,521 a year, to $36 an hour or $75,000 a year. This new rule moved the overtime threshold below the average salaries for many in the games industry — the average salary for programmers in 2007 was $80,886 and $77,131 for producers — and it included subtle changes to the language describing the specific kinds of work that could qualify for the exemption to make it more broadly applicable. Labor advocates described the move as a concession to help tech and entertainment companies minimize their overtime liabilities and encourage them to keep jobs in California instead of moving their operations to places with aggressive tax credits and lower cost of doing business, especially Toronto, Montreal, and Vancouver.

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The new rules also made it much less clear who might have standing to sue for overtime violations, and made the prospect of winning a new case less certain. Because many class-action suits alleging workplace violations are taken up on a contingency basis, meaning the law firm covers the costs of the case in exchange for a percentage of a settlement or judgment — typically 25 percent — many firms are reluctant to accept cases with any ambiguity.

“These cases require a lot of work before you get to the end,” Urmy said. “We are very careful about the cases we bring because we spend a lot.”

Urmy described another class action case outside the games industry that he’d worked on for more than 18 years, which among other things required two Massachusetts Supreme Court appearances and one trip to the United States Supreme Court. “I can’t tell you how many millions worth of time we had in that case,” he said. “You don’t want to get to that point and lose.”

For most game studios and publishers, the changes to California labor laws made it easy to keep crunching as usual, and many developers have found it easier to accept the abuses in exchange for salaries that are often higher than the median U.S. salary.

“This is a very insular industry, and your livelihood is based on having a good reputation,” Weststar said. “You need to be able to move around, you need to be able to be hired on projects and if you’re known as the person who is bringing the lawsuits, you’re done. So there is a culture of just doing the work.”

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For those who weren’t content to just do the work, it has been easier to move on to other industries. Among the former class-action suit plaintiffs, most have found work in other areas. One moved to the film industry, and then began designing augmented reality interfaces for a large tech company. Another transitioned to making educational software for high school students. A third started his own custom furniture company and runs a part-time web design business while raising three children.

For Weststar, sectoral advocacy groups that can both lobby the government and negotiate with major publishers remain the best chance to improve the working conditions in the games industry.

“If you managed to unionize two or three big studios and you could get those three big employers to form an employers association that your union can talk to, then you can start laying the groundwork for something more universal,” Weststar said. “But you need to get something in place first to bring those employers to the table.”

Michael Thomsen is a writer in New York. His work has appeared in The New York Times, The New Yorker, The Atlantic, Slate, The New Republic, The New Inquiry, Edge, and Gamasutra. Follow him on Twitter @mike_thomsen.

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