Activision Sued For Unpaid Overtime

In the wake of EA's employee settlement, Activision finds itself in a suit for much the same reason. Next Generation reports: "Activision's Computer Graphics employees, who work many overtime hours to produce Activision's profitable videogames, fully deserve to be paid all the overtime compensation to which they are entitled under the law ... Excessive overtime is endemic in the videogame industry, but we hope that this and other lawsuits will spur major changes in the way employers treat their employees."

Comments

Fair Labor Standards Act

[Anonymous Coward]

I don't think so.

First, according to the USL's FLSA, "**most** employees in the United States be paid [...] overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek."

Also, there are only 5 categories of jobs that are exempt from overtime. Just this week, I know my employer illegally classified me as exempt.

http://www.dol.gov/esa/regs/compliance/whd/fairpay /fs17a_overview.htm

Re:Fair Labor Standards Act

[Sparr0]

Do you even read your own links? One of the specific exempt categories:

Computer Employee Exemption

To qualify for the computer employee exemption, the following tests must be met:

• The employee must be compensated either on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;
  
• The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;
  
• The employee's primary duty must consist of:
  
  1. The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
     
  2. The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
     
  3. The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
     
  4. A combination of the aforementioned duties, the performance of which requires the same level of skills.

$455/wk is a decent wage where I live, and I doubt many programmers make less. Duty #2 pretty much exactly sums up the job of your average programmer.

Re:Salary? No overtime for you.

[taustin]

The law - and the courts - have said otherwise. Abusive contract provisions are not enforceable, and are routinely struck down in cases like this.

There is a difference between salaried and salaried exempt, after all. Were you aware of this?

As a general rule (and it varies somewhat by state, though the feds set minimum standards), to be salaried exempt (without the exempt, you are very explicitly entitles to overtime), you must be one of the following:

1) A regulated professional (as in, your profession is regulated by some government agency as to your competence).

2) A manager - that means you must have subordinates, and you must spend at least half your time supervising them (among other restrictions).

3) An executive - which means you get very broad discretion in how you do your job.

4) A computer professional (who meets specific criteria in the labor code) who makes a minimum amount per week (which varies rather a lot by state (in California, for example, the minimum is the equivalent of $47.81 per hour, or nearly $100,000 a year).

If you meet one of those criteria, you may legally be salaried exempt. Otherwise, regardless of what your contract says, you may not legally be classsified as salaried exempt.

Of course, all this applies only to employees. What I would expect Activision to claim is that these folks are contract labor, but that can get mighty complicated, too. Microsoft got hit a few years ago on the same thing, and lost, despite what they thought were bulletproof contracts.

I wouldn't be surprised to find out that Activision is paying taxes for these people, which will definitely make them employees, not contractors.

(I am not a lawyer, and laws vary by state. If this matters to you, you'd have to be an idiot to not consult a qualified labor attorney local to you.)

Re:Pay attention to the details

[jasen666]

Programmers are not exempt either, unless they are direct managers, and spend some of their time actually managing people. Or they make a large enough salary to begin with (which is about 100k+).
In fact, ONLY managers, supervisors, & execs are truly OT exempt employees. Corporate America sure as hell doesn't want their employees knowing that fact.

My last company actually changed all of us from salaried to hourly for this very reason. Even though we had no real overtime qualms, they didn't work us like dogs. They claimed that it was now not "legal to make a non-manager salaried", which was an obvious lie, as what they meant to say was "we can no longer skip paying you overtime because you're not a manager". So, everyone went hourly, and a sudden OT ban went into effect. I'm guessing somebody ratted them out to the state board.

Re:Bloody good thing too

[Aceticon]

Actually, from my own personal experience of having worked as a software developer both in 10h/day (2h unpaid) jobs and 8h/day ones (different countries), after about a month of continuous working 10h/day your total dailly productivity (in those 10h) is actually lower than would be (in an 8h working day) under an 8h/day regime.

Even more important is the fact that tired people make a lot more bugs than rested ones, and bugfixing can easilly be 10 or 100 (or even 1000 or 10000 if the software gets released with the bugs) times more costly to do than doing the work right in the first place.

Of course, the project might still have been released on time with the help of overworking ... only to stall for months in beta testing, be rejected by clients which are not interested in buggy software or have a long tail-period where bugs are being reported and bugfixes are constantly being developed and released to the customers.

From what i've seen, overworking prospers mostly in companies with clueless middle-management or industries with clueless clients (which are used to buggy and/or incomplete deliverables) and where developers are mostly young, male and single (easiest ones to convince that "this is the normal way of doing things").