Loots of Their Labor: Analyzing Wage & Hour Challenges in Gaming’s “Crunch Culture”

Several industries rely on high volumes of creative input from their labor forces; the legal,¹ accounting,² medical,³ and financial⁴ fields are infamous for time demands placed on employees. Tech professionals also confront similar high-volume work periods, typically before a big product release.⁵ Yet an underexplored industry featuring this demanding work culture lies within interactive entertainment space: video game development.⁶ While most of the listed industries offer long-term benefits like equity, job security, or financial stability, game development studios often do not have the same carrots-and-sticks available to sweeten the pot for overworked employees.

While different industries may quibble over the exact definition of
“crunch,” all definitions describe the expected, and sometimes formalized, overworking of professionals for sustained periods as an all-consuming “culture, an atmosphere, a state of mind.”⁷ Crunch can also transform a social-cultural management issue into a bona fide legal problem for game studios as unsafe and unsustainable labor practices become normalized.⁸ Despite the recent media attention crunch culture has received,⁹ the gradual overworking of game engineers has been documented since the early 2000s.¹⁰ Prior accusations against prominent game dev Electronic Arts culminated in a $14.9 million payout to settle unpaid overtime claims from frustrated employees.¹¹

Yet over a decade later, crunch still seems to accompany increasingly complex game releases, even when game dev studios assure the public the extra hours are merely voluntary.¹² Notably, in anticipation of 2020’s biggest release, Cyberpunk 2077’s CD Projekt Red faces immense backlash from both employees and the media, highlighting empty promises of well-managed crunch meant to appease workers.¹³ The company’s continued assurances to investors that the extra work was “not that bad”¹⁴ and apology to employees’ spouses for their loved ones’ absence from the home front during crunch¹⁵ has done little to quell internal frustration with the studio. And in true crunch fashion, increasing workloads still resulted in a predictable outcome: another pushed-back deadline requiring additional crunch.¹⁶

Although crunch has become an accepted downside of working at a prestigious AAA game development company, firms employing crunch may have to reckon with difficult labor law questions if the practice persists.

All Work and No Play? Statutory Safeguards for Game Dev Workers

Due to the expected, intense work schedules leading up to game releases, studio workers may not believe themselves to have any legal protection to prevent such overwork. However, many low-level workers in the game development space are shielded from uncompensated crunch by a robust piece of federal legislation in the Fair Labor Standards Act (hereinafter “FLSA”).¹⁷ The FLSA offers safeguards for certain employees, including minimum wage and overtime at one-and-a-half times the worker’s hourly rate, provided that the employee does not make over the $35,568 annual salary.¹⁸ In tech-focused industries, companies tend to hire engineers as independent contractors, circumventing some of these protections afforded to full-time employees.¹⁹ The video game industry’s “contractor-heavy model” is no secret, with game giants like Psyonix Inc. (Rocket League) and Activision Blizzard (Call of Duty) largely reliant on outsourcing work to contractors.²⁰

Interestingly, the FLSA carves out several exceptions for certain computer-professionals, allowing exemption for employees that (1) earn as salary or a contracting fee more than $684 per week or $27.63 an hour; and (2) whose primary job duties qualify as software/hardware systems analysis, computer design, software development, or testing and documenting computer systems or programs.²¹ This provision’s impact on the gaming industry is clear: many, if not a vast majority of, engineers, programmers, and QA testers working for a game studio were already exempt from the FLSA’s paid overtime requirements. As far as the games industry is concerned, this computer-professional exemption protects employers, despite the DOL’s purported intention.²² Thus, while this exemption may still protect underpaid graphic designers and game artists employees, programming-focused employees decrying mandatory crunch have little recourse.

Another challenge in analyzing the legality of crunch is the availability of accurate wage data for creative engineers employed by game development studios. In prominent occupational databases, video game designers and related programming positions show unhelpfully wide ranges, depending on the geographic location and experience level required for the job. While appearing to show median wage level that easily exceeds the FLSA’s nonexempt classification, DOL’s paltry wage data does not align with the actual industry wages.²³ For instance, DOL’s O*NET OnLine database notes that the median salary for video game designers in 2019 was $88,550 and an hourly rate of $42.57, whereas a survey of game developers provided a more realistic range between $50,000-75,000.²⁴ This discrepancy between wage surveys and actual compensation for game studio workers makes it difficult to calculate industry-average wages, and thus, makes it difficult to determine whether FLSA protections are triggered.

Another factor that may compound game studios’ ability to proffer FLSA-exempt wages is DOL’s and DHS’s recent updates to foreign wage requirements. Like other high-tech fields, interactive entertainment firms employing foreign talent are required to pay non-domestic employees the same wage as American workers with the same job duties and experience.²⁵ Such a requirement intends to prevent displacement of U.S. workers by cheaper, foreign workers.²⁶ Even if such regulations are overturned through litigation,²⁷ employers will still be forced to bear the costs of securing work visas for such employees, or risk hiring less-qualified domestic workers. In either case, businesses eat the increased operational costs,  further incentivizing misclassification of workers to avoid triggering FLSA’s overtime requirements.

Another Player Has Joined Your Party – Game Dev Workers Banding Together

As more state legislatures trend toward strengthening the employee classification system,²⁸ the interactive entrainment industry is poised for change. The effect of such legislation could be felt in game development hotspots like Los Angeles and Seattle, transferring lower-wage freelancers to the official payroll. However, mere reclassification of independent contractors as employees will not by itself alleviate crunch-created workplace issues.

For employees seeking enforcement of the protections afforded by the FLSA, several court cases set the precedent for joining labor-related grievances. In 2012, a California federal district court granted the plaintiff-employees’ motion for a collective FLSA action against their game developer employer.²⁹ There, the court reasoned that so long as the collective employees consent to the action and are similarly situated as the representative plaintiffs, game designers can party up to regain missing wages and overtime bonuses.³⁰ Similarly, former employees brought suit against Telltale Games, Inc. for implementing mandatory crunch, and after the game’s shipping to market, firing those employees without severance.³¹ While the facts of Helton differ substantially³² from the instant crunch craze, allowing similarly situated video game workers to aggregate FLSA claims, including misclassification as independent contractors, is a promising sign for those working mandatory and sustained overtime. Likewise, the Telltale lawsuit foreshadows the breaking point for game dev employees that are forced to crunch without adequate compensation.

Based on recent case law and DOL wage adjustments, game studio employees have some flexibility in dealing with crunch culture. As noted, a game dev’s insistence on a non-compulsory crunch may itself be sufficient to dispel accusations of labor law violations. Similarly, the wages of potential complainants may in fact be too high to trigger statutory safeguards under the 2019 DOL rule changes for computer professionals. Calls for unionization amongst game developers, creative designers, and related professionals have fallen short of expectations.³³ And promises of equity in the companies has failed as adequate compensation for the grueling hours worked.³⁴

Therefore, employees are left without any substantial defenses against crunch, with the hope for change resting in the hands of game dev management. Some companies, like Grand Theft Auto’s Rockstar Games, have implemented new internal procedures and feedback loops to avoid crunch.³⁵ Promising top-down workflow adjustments, in conjunction with consumer pressure that avoids exploiting the fruit of overworked labor forces,³⁶ will hopefully address at least some of the concerns caused by crunch.

Matt Vernace is a second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor on the Cardozo Arts & Entertainment Law Journal. Matt’s areas of legal interest include startups, interactive entertainment, and IP. Connect with Matt at https://www.linkedin.com/in/mjvernace/.

1. Law Firm Hours – The Real Story, Above the Law (July 24, 2012, 1:30 PM), https://abovethelaw.com/career-files/law-firm-hours-the-real-story/ (“If you want an adventure, join the Navy. If you want short days, leave the law.”).
2. Am. Inst. of CPAs, 8 Tips for Surviving Busy Season, AICPA,       https://www.aicpa.org/interestareas/youngcpanetwork/resources/professionalissues/tips-for-surviving-tax-season.html (last visited Oct. 21, 2020) (noting that many CPA firms earn 50+% of their annual revenue during three-month busy seasons).
3. Ryan Park, Why So Many Young Doctors Work Such Awful Hours, The Atlantic (Feb. 21, 2017), https://www.theatlantic.com/business/archive/2017/02/doctors-long-hours-schedules/516639/ (noting that despite regulation of training hours in residency programs, single shifts can still last 28 hours for salaried workers).
4. Kevin Roose, The Woes of Wall Street: Why Young Bankers Are So Miserable, The Atlantic (Feb. 19, 2014), https://www.theatlantic.com/business/archive/2014/02/the-woes-of-wall-street-why-young-bankers-are-so-miserable/283927/ (highlighting the “‘banker 9-to-5’” for typical working hours refers to shift from 9 a.m. to 5 a.m. the next morning).
5. Justin Brown, Vincent Dorie, Michael Huang & Michael Turitzin, Defining Crunch Mode, Stanford: Comp. Sci. https://cs.stanford.edu/people/eroberts/cs201/projects/crunchmode/index.html (last visited Oct. 22, 2020).
6. Jason Schreier, The Horrible World of Video Game Crunch, Kotaku (Sept. 26, 2016, 10:30 AM), https://kotaku.com/crunch-time-why-game-developers-work-such-insane-hours-1704744577.
7. Jason Schreier, In World of Video Game Development, Chronic Overtime Is Endemic, Bloomberg (Sept. 30, 2020, 2:54 PM), https://www.bloomberg.com/news/articles/2020-09-30/in-world-of-video-game-development-chronic-overtime-is-endemic; see also Walt Williams, Why I Worship Crunch, Polygon (Aug. 23, 2017, 11:00 AM),  https://www.polygon.com/2017/8/23/16184068/why-i-worship-crunch (“Crunch is exploitive . . . . Employees feel their jobs are at risk if they resist . . . . And, most damning of all, crunch isn’t necessary.”).
8. Crunch Culture: Effects on Employees Exposed to Extreme Work Conditions, Analyzing Pop Culture (May 10, 2019), https://blogs.lt.vt.edu/chrisr6/2019/05/10/crunch-culture-effects-on-employees-exposed-to-extreme-work-conditions/.
9. Id.
10. Erin Hoffman, EA: The Human Story, Live Journal, https://ea-spouse.livejournal.com/274.html (last visited Oct. 20, 2020).
11. Dawn C. Chmielewski, EA Agrees to Settle Overtime Lawsuit, LA Times (Apr. 26, 2006, 12:00 AM), https://www.latimes.com/archives/la-xpm-2006-apr-26-fi-ea26-story.html.
12. Andy Chalk, CD Projekt Boss Re-Commits to ‘Non-Obligatory Crunch’ on Cyberpunk 2077, PC Gamer (June 14, 2019), https://www.pcgamer.com/cd-projekt-boss-re-commits-to-non-obligatory-crunch-on-cyberpunk-2077/. Indie game developer Rami Ismail noted that the company’s prior promise to avoid mandatory crunch made the studio’s current obligatory six-day weeks that much more frustrating. Rami Ismail (@tha_rami), Twitter (Sept. 29, 2020), https://twitter.com/tha_rami/status/1311104640851881985 (“Mandatory crunch is always bad, but to be really honest, it’s really that they broke their promise not to crunch that hurts on this one.”).
13. Andy Chalk, CD Projekt Boss Apologizes for Saying Cyberpunk 2077 Crunch Is ‘Not That Bad’, PC Gamer (Oct. 29, 2020), https://www.pcgamer.com/cd-projekt-boss-says-cyberpunk-2077-crunch-is-not-bad-thatand-never-was/.
14. Jason Schreier (@jasonschreier), Twitter (Oct. 29, 2020), https://twitter.com/jasonschreier/status/1321857302115151873 (criticizing the studio’s downplaying the severity of its mandatory crunch and then issuing an apology to workers as “quite a turnaround”).
15. Abhinav Sharma, CD Projekt Red Boss Apologizes to Employees and Their Families for Crunch, Player.One (Oct. 9, 2020), https://www.player.one/cd-projekt-red-boss-apologizes-employees-and-their-families-crunch-137120.
16. Adam Badowski & Marcin Iwinski (@CyberpunkGame), Twitter (Oct. 27, 2020), https://twitter.com/CyberpunkGame/status/1321128432370176002.
17. Fair Labor Standards Act §§ 13(a)(1), 13(a)(17).
18. Wage & Hour Div., Final Rule: Overtime Update, Dep’t of Lab., https://www.dol.gov/agencies/whd/overtime/2019/index (last visited Oct. 19, 2020).
19. See Carol Villemaire, Employee or Contractor? What Tech Startups Need to Know, James Moore & Co., https://www.jmco.com/employee-or-contractor-tech-startups/ (last visited Oct. 19, 2020).
20. Lauren Weber, In the $75 Billion Videogame Industry, Hiring People Is a Last Resort, Wall St. J. (Apr. 10, 2017, 11:30 AM), https://www.wsj.com/articles/why-a-75-billion-business-is-getting-out-of-the-hiring-game-1491838235.
21. 29 C.F.R. § 541.400(a)-(b)(4).
22. Wage & Hour Div., supra note 18. Although the rule was announced to “make 1.3 million American workers newly eligible for overtime pay,” because many technical game development employees already exceed this hourly threshold, it offers little protection for salaried and overworked software engineers and QA testers at AAA studios. Id.
23. A cursory look into H-1B wage data (positions requiring a bachelor’s degree in a specific specialty) shows a median salary of $57, 657.50 for salaries of foreign talent in the U.S. game dev market. See H-1B Salary Database, https://h1bdata.info/index.php?em=&job=video+game&city=&year=All+Years (type “video game” into Job Title field; then select “All Years” from time period dropdown menu).
24. Compare O*Net OnLine, Summary Report for: 15-1199.11 – Video Game Designers, https://www.onetonline.org/link/summary/15-1199.11 with IGDA, Developer Satisfaction Survey 2019: Summary Report, at 23-24, https://s3-us-east-2.amazonaws.com/igda-website/wp-content/uploads/2020/01/29093706/IGDA-DSS-2019_Summary-Report_Nov-20-2019.pdf. Note that O*Net’s overcalculation of game designers’ median salary is likely due to their combining of several “Computer Occupations, All Other” classes of jobs. O*Net OnLine, supra.
25. Press Release, Megan Sweeney, Employ. & Training Admin., U.S. Department of Labor Issues Interim Final Rule to Protect Wages of American Workers (Oct. 6, 2020), https://www.dol.gov/newsroom/releases/eta/eta20201006 (Rel. No. 20-1882-NAT).
26. Id. (“‘The U.S. Department of Labor is strengthening wage protections, addressing abuses in these visa programs, and ensuring American workers are not undercut by cheaper foreign labor.’”).
27. Stuart Anderson, Two More Major Lawsuits Filed Against Trump H-1B Visa Restrictions, Forbes (Oct. 20, 2020, 3:10 AM), https://www.forbes.com/sites/stuartanderson/2020/10/20/two-more-major-lawsuits-filed-against-trump-h-1b-visa-restrictions/#174cdf77175e.
28. Cal. Lab. Code § 2775 (Deering 2019).
29. Helton v. Factor 5, Inc., No. C 10-04927 SBA, 2012 U.S. Dist. LEXIS 88440 (N.D. Cal. June 25, 2012).
30. Id. at *9.
31. Class Action Complaint, Roberts v. Telltale Games, Inc., No. 3:18-cv-05850 (N.D. Cal. Sept. 24, 2018); see also Nick Statt, Telltale Under Fire for Prioritizing the Walking Dead Conclusion in Wake of Mass Layoffs, The Verge (Sept. 25, 2018, 2:57 PM), https://www.theverge.com/2018/9/25/17902044/telltale-games-the-walking-dead-final-season-partner-criticism-severance (quoting a laid-off Telltale employee’s Twitter: “‘None of my sleepless nights or long hours on weekends trying to ship a game on time got me severance today. Don’t work overtime unless you’re paid for it, y’all. Protect your health. Companies don’t care about you.’”).
32. Helton, at *5-6. Here, Plaintiffs had gone for several weeks without pay when their employer game studio dissolved, lost health insurance benefits when the company failed to pay premiums, and did not receive payment after the employer suspiciously transferred valuable IP assets to the defendant’s girlfriend’s company. See id.
33. Natasha Lomas, UK Video Games Workers Unionize Over ‘Wide-Scale Exploitation’ and Diversity Issues, TechCrunch (Dec. 14, 2018, 6:46 AM), https://techcrunch.com/2018/12/14/its-about-ethics-in-the-games-industry/; see also Tim Colwill, Game Developers Need to Unionize, Polygon (Jan. 16, 2019, 10:22 AM), https://www.polygon.com/2019/1/16/18178332/game-developer-union-crunch; see generally Game Workers Unite, https://www.gameworkersunite.org/. While promising in its inception and mission, Game Workers Unite focuses on whistleblowing on industry awareness of unfair labor practice, rather than any substantive legal action against abusive game dev companies.
34. Electronic Arts Settles Class-action Lawsuit, NBC (Oct. 6, 2005, 9:57 AM), https://www.nbcnews.com/id/wbna9611229 (emphasizing the insufficiency of the industry trend to offer stock options to entry-level game dev graphic designers in place of overtime).
35. Nick Kolakowski, Rockstar Games Trying to Ease Crunch Time, Boost Work-Life Balance, Dice (Apr. 20, 2020),  https://insights.dice.com/2020/04/20/rockstar-games-trying-ease-crunch-time-boost-work-life-balance/ (quoting an internal correspondence from Rockstar’s Head of Publishing: “In these last several months we have undertaken a lot of work across every area of the company, looking at our processes to determine what works and what doesn’t, what we are great at and what we could improve.”).
36. Luke Plunkett, Stop Preordering Video Games, Kotaku (May 10, 2012, 3:00 AM), https://kotaku.com/stop-preordering-video-games-5909105.