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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."
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.)