Salaried game artist in CA - what's the law for overtime?

February 16, 2012 11:49 AM

I need to figure out if my coworkers and I are owed overtime pay. I'm getting conflicting information everywhere I go, and if I need to refer to a lawyer in the end so be it. Maybe you guys can help though... We're salaried video game artists in California.

This is a studio of artists only, no programmers, which makes looking online for answers a little harder. I've poured over previous class-action lawsuits in the industry relating to overtime pay but they're scarce on the details I really need. Everyone here is salaried, and we usually work 40-hour weeks. Occasionally however (or rather, more and more recently) scheduling conflicts demand that we work longer hours and weekends.

We have a really scummy boss that only cares about the bottom line (resume polishing, yep) and sometimes we get paid for our extra hours and sometimes we don't. There's zero consistency and lots of confusion.

So as salaried game artists in CA, what are our applicable overtime laws? Is there other relevant info I'd need to provide to figure this out?

I apologize in advance if this is actually a really clear-cut issue and I've missed it.

posted by anonymous to work & money (18 answers total)

IANA-LABOR-L but i have never, in a salaried position, been paid overtime regardless of how many extra hours i have worked, nor have i personally heard of salaried employees getting paid overtime. i have always heard/assumed that is the trade-off in becoming salaried.
posted by violetk at 11:52 AM on February 16, 2012 [1 favorite]

What matters is whether you're exempt or non-exempt (from overtime pay). Salaried and exempt are not necessarily synonymous, but the general assumption is that if you are salaried you are exempt. Here is one site explaining whether you qualify as exempt, but those are the keywords you're looking for.
posted by brainmouse at 11:54 AM on February 16, 2012 [4 favorites]

So as salaried game artists in CA...

... you're probably exempt.
posted by Cool Papa Bell at 11:55 AM on February 16, 2012 [1 favorite]

Here's an article from a L.A. law firm on the subject (confirming what brainmouse said above):

http://www.harriskaufman.com/salariedemployee-california.htm
posted by Doleful Creature at 11:56 AM on February 16, 2012

yep, like violetk, i've always found that salaried employees don't get OT.
posted by nadawi at 11:56 AM on February 16, 2012

As a "creative professional" who has the "primary duty of performing work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor" it is likely that you are classified as "exempt" and are not owed any compensation for overtime.
posted by slkinsey at 11:56 AM on February 16, 2012

For the record, you are probably exempt according to the rules. I can't promise this isn't out of date:

3. Creative Professional Exemption
- Primary duty of performing work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.
- The minimum salary test is met. (See footnote #1.)

Minimum salary test:
Receives at least two times the state's minimum wage as a salary for full-time employment. This is known as the "minimum salary level test." (See Footnote #1)

1. "Minimum Salary Test" The minimum salary level for exempt white collar employees according to A.B. 60 is "no less than two times the state minimum wage for full time employment." "White collar" exemptions refer to the executive, administrative, learned professional, creative professional, computer employee, and outside sales exemptions specified in the Fair Labor Standards Act (FLSA) as amended effective 8/23/2004. Computing the California minimum salary level for January 2009 we do the following: Current minimum wage = $8.00 per hour X 2,080 hours in a year = $16,640, multiplied by 2 times the minimum wage = $33,280 divided by 12 months = $2,773.33 per month minimum salary requirement for exemption status. Since that is higher than the $1,957.00 per month ($455.00 per week) required by the FLSA, California's minimum will be required for exemption of California jobs.
posted by brainmouse at 11:56 AM on February 16, 2012

To clear up any confusion: plenty of people who are salaried employees get paid overtime. You just have to be in a non-exempt position. For example, if you are a salaried secretary at a company, you are owed overtime compensation for hours worked over 40.
posted by slkinsey at 11:58 AM on February 16, 2012

nor have i personally heard of salaried employees getting paid overtime. i have always heard/assumed that is the trade-off in becoming salaried.

Just because you're salaried doesn't mean you aren't eligible for overtime. I've been salaried for much of my career and still eligible for overtime.

It's the exempt vs non-exempt thing that makes a difference, not salary vs hourly. Employers may classify the job incorrectly, either on purpose or by mistake, but that's a fight they have to have with the IRS.
posted by rtha at 11:58 AM on February 16, 2012

In the US, being salaried and being overtime-exempt are two different things. An employer can't legally take a job which is not exempt, offer the employees a salary, and then refuse to pay them overtime.
posted by muddgirl at 11:59 AM on February 16, 2012

You're not providing enough information for anyone here to tell you whether you should be getting paid overtime or not.

There are two sources of law you need to look into. One is federal (Fair Labor Standards Act) and the other is state (California Labor Code).

You're salaried, so the question is whether you're exempt from overtime payments. For your boss to deny you overtime, you must be exempt under both laws. The laws require you to make a minimum salary to qualify as exempt, but they also require an analysis of the types of responsibilities you have, and what you actually do at work.

The FLSA does have a "creative professionals" exemption, so you may be exempt from the FLSA overtime rules if that exemption applies to you. Whether it applies is fact specific to your situation, but at first blush your situation sounds like it might be a fit. Work that is rote, reptitive, and can be done without special use of skill or intelligence won't fall within the exemption, however. So the more "creative" your work is, the more likely it is to be exempt.

The CLC, I believe, has a similar exemption.

In any case, talk to a plaintiff's employment lawyer about this. You should be able to get a free consultation.
posted by MoonOrb at 11:59 AM on February 16, 2012 [1 favorite]

The key phrase in the post, to me, is "sometimes we get paid for our extra hours and sometimes we don't. There's zero consistency and lots of confusion." If there is a company policy, set down on paper, that says you get paid for extra hours, then it should apply all of the time, and not just when the manager remembers about it. As far as I am aware the specific terms of your contract should trump any question of exempt/non-exempt status. You need to get a hold of the employee handbook or contract or whatever this is based on, go over it with a fine-toothed comb, and likely ask a labor lawyer to give it a read as well.
posted by Holy Zarquon's Singing Fish at 12:04 PM on February 16, 2012

Call the Legal Aid Society - Employment Law Center. They have free walk-in and telephonic clinics. Their website also has a lot of great publications/resources.
posted by anya32 at 12:07 PM on February 16, 2012

Call a plaintiff's employment lawyer; they'll generally do a consult for you for free or very cheaply. Bring your handbook and your pay stubs and a general idea of how many employees there are in your situation. You might be exempt from overtime, but you also might not be, regardless of whether you're paid a "salary."
posted by dpx.mfx at 12:20 PM on February 16, 2012

You can also call 1-866-4USWAGE to reach the U.S. Department of Labor's Wage and Hour Division's free helpline.

They have a number of background documents here.
posted by Mr.Know-it-some at 12:22 PM on February 16, 2012

A precedent has already been made in California courts (the EA class action suits I'm sure you're familiar with) which hinged on the 'creative professional' rule MoonOrb and others mentioned. The courts determined EA's entry level artists did not "engage in advanced work that is creative or intellectual in nature" so they were entitled to overtime pay.

Whether you get overtime is also going to depend upon this detail, and only a lawyer will be able to figure out if your work falls into that category. The actual responsibilities and creative control a game artist has varies widely depending upon the company. If you work at a studio in CA that only produces art, there's a good chance you are not exempt and thus entitled to overtime pay, but it depends on what your specific duties are.

Pretty much everyone in the game industry assumes that there's no overtime pay for salaried game developers ever, but that doesn't mean that is what the labor code dictates.
posted by subject_verb_remainder at 1:49 PM on February 16, 2012 [1 favorite]

subject_verb_remainder has it. I work in the same industry as you, and I am also in CA. We are mixture of contractors (paid hourly, obviously get overtime) and salaried employees. Some of the salaried employees are exempt, and some are non-exempt. It generally depends on seniority level and salary. The more senior and better paid you are, the more likely you are to be exempt.

Having said all that, there is no reason for the lack of consistency. My guess would be that if you are a contract art creation house, you would not be exempt. But you should consult a lawyer. Look up the company that handled the EA suit, they will likely give you a free telephone consult.
posted by Joh at 9:52 PM on February 16, 2012

What does it say in your employee handbook or anything you signed when you started?
posted by radioamy at 10:58 AM on February 17, 2012