Santa's sweatshop

It's unclear how much lawyers could help E.A.'s workers gain the time to have a life. A company like Electronic Arts can demand as many Saturdays and Sundays as it wants under federal law.

"There is no federal law that prohibits employees from working mandatory overtime," explains Cathy Ruckelshaus of the New York-based National Employment Law Project. "They're just forced to pay them. Supposedly, the employers are supposed to pay time and a half. But if they're characterized as 'exempt' and forced to work overtime, the employer wins. It's not an uncommon practice." California, where Electronic Arts is located, does have some regulations regarding the maximum number of hours employees can work, but they apply to those in specialized and potentially dangerous fields -- like the railroad, healthcare and airline industries-- not game development.

Unlike the United States, the European Union has a 48-hour work-week limit, with some loopholes and exceptions. In Canada, after 48 hours, all overtime is voluntary and can't be imposed by an employer. But in the United States, the strongest law limiting overtime is in Maine, where employees can be required to work only 80 hours of overtime in any given two-week period.

That law came about in 2000, after a lineman working to get the power back on after a storm toiled more than 90 hours with few breaks before he accidentally electrocuted himself, says John de Graaf, national coordinator for Take Back Your Time Day.

"In this country there are virtually no protections of any sort on workers' time," de Graaf says. "It's rather bizarre that a recent law passed in 2000 that limits overtime to 80 hours every two weeks is really for all intents and purposes the best that we do here in the United States."

In this environment it's not surprising that a glam industry like computer gaming can attract hordes of eager programmers and artists willing to work as many hours creating games as they used to play them. "Hire young programmers. Wow them with free laundry service and a free snack machine, and then burn them out. So what if you lose a few? There will be more kids, raised on the PS2 [PlayStation 2], thinking they hit the motherlode when they are offered a job making video games," wrote one poster on the Well, an online conferencing service, who asked not to be named. "This is not unlike the way the music industry (where I work) operates. Many, many interns and kids right out of college that we work to death. There are always more right behind them."

Many see parallels between the gaming industry and the movie business -- minus the formidable presence of Hollywood's powerful unions. "One of the biggest challenges is that most people are too passionate," says Jason Della Rocca, the program director for the International Game Developers Association, which published an open letter about workplace issues. "They're willing to sacrifice anything to get into it and have a go at it."

At the heart of the lawsuit against E.A. is another question: What is a game? Is it entertainment or a software program? In 2000, California exempted some programmers in the software industry from overtime laws. But those changes didn't apply to certain techies in the entertainment biz.

Does the work of "image production" employees require enough creativity and skill to justify exempting them from overtime regulations? Or are they rather implementers executing the designs of art directors and producers?

"Under the labor code, we believe that this class of employees is not exempt from the overtime laws, and so that any work that they do in excess of eight hours a day or 40 hours per week, Electronic Arts is required to compensate them for at the rate of time and a half," explains Miranda Kolbe, an attorney for Schubert & Reed. The San Francisco law firm first brought the suit against Electronic Arts in July on behalf of Jamie Kirschenbaum, a digital artist. "Right now E.A. doesn't pay them at all for that time. They get a salary that covers them 40 hours a week. And any time that they put in above 40 hours is uncompensated."

But if an employee is properly classified as "exempt," then there's virtually no limit to the number of hours that he or she can be required to work, as long as that compensation "satisfies the minimum wage," according to Todd Heyman, an attorney for Shapiro Haber & Urmy in Boston, which is also representing plaintiffs in the Electronic Arts case. In other words, as long as the number of total hours divided into a salary doesn't work out to be less than minimum wage, any number of Saturdays and Sundays can be required without comp time. (Under a new law passed in California in 2000, programmers must make at least $44.63 an hour to be exempt. According to Game Developer magazine's 2003 annual salary survey, programmers in the game industry make less than that on average, pulling in around $77,000 a year. Artists and animators in the business make an average of about $57,000.)

The Electronic Arts lawsuit does not address the issue of the numbing hours of work itself. "We don't have a legal claim in our case making out that E.A. has made people work some excessive number of hours, and that in and of itself constitutes a violation," says Kolbe. "We're just claiming that they need to pay the employees for the hours that they actually work."

But one point of overtime law, and the time-and-a-half pay it requires, is to encourage companies to either hire more workers to get a job done or demand fewer hours of the workers that they already employ. The lawyers for the plaintiffs in the Electronic Arts case believe that if the company is forced to pay up for all those extra hours, the number of hours will fall: "Were Electronic Arts paying people overtime wages for the overtime worked, you would probably see people working less overtime," says Kolbe. "That's just speculation, but at some point, it's just not economical."

From the online discussion about the conditions at Electronic Arts, it's easy to see that the problem is not confined to a single workplace. The consolidation of a young industry that's union-free and full of eager young recruits has created a situation where it's easy to work people as long as their employer likes.

Della Rocca, from the International Game Developers Association, says that long hours are common in the industry: "I don't want to suggest that every single game studio on the planet is a sweatshop. But that's something the industry as a whole is dealing with, and I would not say it's isolated to any one company."

He hopes that enlightened self-interest will lead companies to take a more worker-friendly tack: "Whether it's rookies or veterans or whatever, it's proven that overworking your staff is not going to get good or productive work out of them. If you send people home to have a life, walk the dog, see a movie, and have a good night's sleep, they'll be more productive. After about eight hours of work you make more problems than you're solving by putting more bugs into the code."

But even Della Rocca admits that's a hard argument to make stick in the face of Electronic Arts' monstrous commercial success -- 27 of its titles sold more than a million copies each last year -- not to mention its stock market heft: "Will [overworking the employees] be their demise? We have no way to tell if eventually, it will," he says. "But it's setting a bad example."

Which really raises the question: Without tougher laws or organized employees, what incentive does Electronic Arts or any other company have to do things differently?

"EA's attitude toward this -- which is actually a part of company policy, it now appears -- has been (in an anonymous quotation that I've heard repeated by multiple managers), 'If they don't like it, they can work someplace else,'" the EA Spouse wrote in her online lament. 'Put up or shut up and leave: this is the core of EA's Human Resources policy.'"

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