Video-Game Workers Sue for Overtime Pay

Working in the video-game industry is a dream job for those raised on “Super Mario” and “The Sims.” Thousands of programmers and artists have flocked to companies such as Electronic Arts for the chance to create popular games like “James Bond” or “Madden NFL 2005.”

Living the Silicon Valley stereotype, they subsist on pizza and soft drinks, working six-day weeks for months on end to make deadlines so there will be plenty of games under Christmas trees.

But Jamie Kirschenbaum, a 26-year-old lead animator at EA’s Redwood City studio, is not a happy elf. In July, he filed a class-action lawsuit against the world’s largest video-game company, alleging EA drives workers to exhaustion without paying overtime.

Around the same time, game programmer Neil Aitken filed a similar suit against Vivendi Universal Games in Los Angeles. Aitken claims he and his co-workers regularly worked 12-hour-plus days without being paid overtime and then were asked to falsify time sheets.

Crunch Time

The lawsuits have opened a window into a long-smoldering controversy in the US$10 billion U.S. video-game industry over the widespread practice of “crunch time,” or working long hours to finish a project as its deadline nears.

The debate also is part of a larger battle in the technology industry: Who qualifies as a creative professional and who should receive the protections of labor laws designed for work habits of a different era?

“I thought it was awesome to get a job here because I started playing EA games when I was young,” said Kirschenbaum. “But it’s a job. I never felt I should devote my life to it.”

Electronic Arts, which has US$3 billion in revenues and 5,100 employees, declined to comment on Kirschenbaum’s allegations or discuss its overtime policies.

But in response to the suit, the company issued a statement that it offers workers competitive wages and benefits.

Vivendi declined comment on Aitken’s case.

Broken Promises

Within a month of being hired at EA, Kirschenbaum said, he started working 60 hours a week on a “James Bond” title. As the deadline to complete the game approached, he would work from 8:30 a.m. to 7 p.m. on weekdays and 9 a.m. to 7 p.m. on Saturdays and Sundays.

He says the project’s producer apologized for the long hours in a meeting, promising it wouldn’t happen again. Veteran staffers laughed at the remark.

After the “James Bond” game was finished, Kirschenbaum was assigned to work on another project that was in crunch mode for several months. Then he moved on to “The Sims 2” followed by “The Lord of the Rings: the Third Age.”

He recalled one night when he sat in his cubicle until 11:30 p.m., with a producer looking over his shoulder for three hours straight asking him to tweak his images so they looked right.

Although Kirschenbaum said managers promised to give him days off after each project, the comp time never materialized.

Defending Practices

EA issued a statement in response to Kirschenbaum’s lawsuit, which was filed in San Mateo Superior Court. “We offer competitive salaries, bonuses, stock options, health care and a wide variety of other benefits and work environments that are second to none in our industry,” the company said. “EA remains committed to our customers and our employees and will continue to do all we can to ensure EA is a great place to work.”

Where once game developers toiled alone in garages to finish games, they are now part of a global multibillion-dollar industry where games often cost $5 million to $10 million to develop and take two or three years to complete. As the costs go up, the temptations to cut corners — and overtime pay — are plentiful, said Jason Della Rocca, director of programming for the International Game Developers Association.

“It’s a critical issue in our industry,” said Jamil Moledina, director of the Game Developers Conference, which will hold several “quality of life” panels at its March 2005 event. “Creative people have basic needs in order to function. At a management level, they have to be able to schedule properly to avoid crunch time and plan for delays that are inevitable in projects of this kind.”

To be sure, the work environment at EA is hardly Dickensian. The company offers such amenities as an upscale cafeteria, gymnasium, soccer field, game rooms and a theater where it shows movies and hosts concerts. In 2003, the company made the Fortune magazine’s list of “100 Best Companies to Work For,” which is based in part on employee surveys.

Fair Package?

Nor do video-game workers earn sweatshop wages. For instance, an animator with eight years experience like Kirschenbaum typically makes $65,000 to $74,000, according to Game Developer magazine. And entry-level animators make $40,000 to $45,000. Bonuses can equal up to 15 percent of annual pay.

But Kirschenbaum’s complaints about crunch time are common in the industry, according to a recent survey of video-game workers.

Kirschenbaum’s portrayal of EA’s work culture was corroborated by several current and former co-workers, who requested their names not be used so as not to jeopardize their job prospects.

“We don’t get paid enough for how much life we give up. EA spouses call themselves EA widows,” said one employee. Another disgruntled worker called the company “a divorce factory.”

Earlier this month, one “EA widow” posted an impassioned condemnation of the company’s working conditions that left her partner exhausted. “The extended hours were deliberate and planned; the management knew what they were doing as they did it,” she wrote on the LiveJournal blog site (, generating thousands of generally sympathetic responses.

Deadline Pressure

Companies like EA have drop-dead deadlines for finishing games because they often have to ship products for the holiday selling season or the beginning of a sports season. Crunch time has become a way of doing business even on large multimillion-dollar projects with 200-person teams. Even with good planning and big budgets, games inevitably go off schedule because of unexpected programming bugs or design changes prompted by player feedback.

In contrast to other Silicon Valley workers who traditionally receive stock options and other rewards for working around the clock, game developers are expected to put up with the unpaid overtime for their love of video games.

“The growing pains some of these companies are going through have already been experienced by Disney and others in the film industry,” which now pay for overtime, says Daniel Pyne, an employment attorney at Hopkins & Carley in San Jose.

EA studio manager Neil Young sent an e-mail to employees shortly after Kirschenbaum sued. “This is a very sensitive issue that the entire digital entertainment industry is grappling with,” Young wrote. “Fundamentally, it is about redefining who makes creative decisions in the development process. There’s no clear-cut, final answer as each new generation of technology forces us to re-examine jobs and responsibilities.”

In 2000, the California Legislature changed the state’s labor law to exempt some professionals in the software industry from overtime regulations.

Exceptions to Rule

Companies do not have to pay overtime to software programmers if they make more than $41 an hour and engage in advanced work that is creative or intellectual in nature.

Kirschenbaum’s attorneys argue that his position as an “image production employee” does not require original, creative work and thus he and colleagues in similar positions should be eligible for overtime

California’s overtime exemption does not apply to image effects workers in the film and theater industries. Kirschenbaum’s suit argues that EA is part of the entertainment industry and should be subject to overtime regulations.

High salaries and the prospect of free video games lure many young people to EA. But Kirschenbaum and other employees said they would gladly trade the perks for the option of not working unpaid overtime.

“I’m looking at jobs that pay less because my concern is having a good work environment. I don’t care that the campus is beautiful,” said one EA employee who requested anonymity.

Kirschenbaum said he has heard many stories about co-workers having hard times with families, divorces and other problems.

“I decided that something had to be done,” he said.

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