Crunch before the release of a game. What does employment law say? | In Principle

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Crunch before the release of a game. What does employment law say?

Nerves, feverish analysis, and refinement of details are typical crunch elements before a video game is released on the market. Crunch, a period of intense work, usually shortly before the launch of a game, involves long working days, nights and weekends in front of a computer, sometimes on tasks the worker has never performed before. Can the employer order the employee to work under such conditions, and must the employee comply?

Interviews conducted by Game Developer Conference for the “State of the game industry 2021” report showed that 12% of respondents from the video game industry work an average of 46–50 hours per week, and 21% of them work 41–45 hours a week (3,000 game developers were surveyed for the 9th annual report). The figures are worrying, especially when compared to the maximum number of hours worked per week declared in the same survey over the last 12 months. In that case, 30% of respondents indicated that they worked a maximum of 60 hours per week and 17% reported working over 70 hours per week.

When “all hands on deck” are needed, it is helpful to know what the employer can do and what the employee must do.

Overtime work

In most cases, a crunch requires the employees to work more. This will often mean working overtime. Significantly, under Polish labour law, overtime is permissible only:

  • In cases when a rescue operation is necessary to save human life or health, to protect property or the environment, or to recover from a breakdown, or
  • To satisfy special needs of the employer (Labour Code Art. 1511 §1).

Under certain circumstances, a crunch may qualify as a special need of the employer, and thus the need for overtime will be justified. But even in the case of “special needs of the employer,” there are certain restrictions related to overtime work.

First, overtime work cannot be assigned to pregnant women (Art. 178 §1) or minors (under age 18) (Art. 203 §1). In the case of employees taking care of a child up to 4 years of age, overtime work is allowed only with the employee’s prior consent (Art. 178 §2). Other employees cannot refuse to work overtime if it is within the statutory limits.

Second, the amount of overtime hours is not unlimited. An employee must be guaranteed 11 hours of uninterrupted daily rest per 24-hour period (Art. 133 §1). In practice, this means that a full-time employee should not work more than an additional 5 hours after 8 hours of normal work. Performing duties longer will mean breaking the applicable laws and exposing the person who ordered the extension of work (a supervisor) to a fine.

Additionally, it should be remembered that the average number of working hours (both “normal” and overtime) should not exceed 48 in the adopted settlement period (Art. 131 §1). If the settlement period is one month, the maximum overtime in the month will come to about 32 hours.

There is no doubt that an employee should receive appropriate compensation for overtime hours. It takes two forms:

  • Payment of normal salary plus an allowance of, as a rule, 50%, or
  • Granting the employee time off. The Labour Code clearly states that for the time worked in overtime, at the employee’s written request, the employer may grant him time off in an amount equal to the overtime work. If the employer grants time off at the employee’s request, the employee receives one hour off for each hour of overtime. However, if granting of time off is initiated by the employer, i.e. not at the employee’s request, the compensation per hour of overtime is 1.5 hours off work (Art. 1511).

Work at night

Unfortunately, it happens that during the crunch period employees also work at night. Employment law does not prohibit night work. According to the Labour Code, night time covers a period of 8 hours between 9 pm and 7 am. The exact timeframe is chosen by the employer.

Night workers (i.e. staff with at least 3 hours of night work in every 24-hour period, or at least 1/4 of their work in a settlement period) are entitled to additional remuneration. An allowance is payable for every hour of night work at 20% of the hourly rate defined based on the statutory minimum wage (Art. 1517). In addition, the employer should plan work so that an employee working at night will subsequently have a minimum of 11 hours’ rest.

Work on Saturdays and Sundays

Crunch on a game often requires work on weekends, which are not being normal working days. Work can be assigned on Sunday only in cases listed in the Labour Code (e.g. shift work or employment in the weekend work system). Work on Sunday is also permissible when the work involves the delivery of services by electronic communications, received outside the territory of Poland, if under the regulations applicable to the recipient of the service, Sundays are working days for the recipient (Art. 15110). Work on Sunday is also allowed to repair a breakdown. It seems that there could be said to be a breakdown only when the game has been completed and there are circumstances preventing it from working properly. Simply fine-tuning a game prior to launch is not eliminating a breakdown and therefore should not lead to work on Sundays.

There is more leeway for an employer to mandate Saturday work. Practically speaking, an employer may order work on a Saturday at any time, if justified by the employer’s special needs (Art. 1513). In return for work on Saturday, an employee should be granted a full day off, regardless of the number of hours worked on that day. A day off is to be granted by the employer by the end of the settlement period, and the date is to be agreed between the employee and the employer. Only if it proves impossible to grant a day off for work on Saturday, the employee is entitled to an allowance of 100% in addition to the normal remuneration for every hour of work.

Balanced working time

In the short term, intensifying the amount of work is possible in a “balanced” working time system. A balanced working time system allows for extension of working time (maximum up to 12 hours) for several consecutive days, compensated for by shortening the working time on another day or providing a day off (Art. 135). However, in this case as well, the employer is also obliged to guarantee a minimum rest period of 11 hours.

Assignment of work other than agreed in the contract

During crunch time, employees are often thrown into tasks they have not dealt with before, or even tasks outside their scope of duties. But in this case, the employment law comes to the aid of the employer. Labour Code Art. 42 §4 gives the employer a broad right to change the conditions of work. It allows an employee to be assigned a different job than the one agreed upon. However, there are certain restrictions on this possibility.

An employer has the right to assign an employee to perform other work if all the following conditions are met:

  • There is a legitimate need of the employer
  • The period of entrusting other work does not exceed 3 months in a calendar year
  • The assignment of other work will not entail any reduction in the employee’s remuneration
  • The assigned work corresponds to the employee’s qualifications.

It is possible that in the circumstances of crunch, it will be justified to change the type of work performed by an employee, but the new tasks must suit the person’s qualifications—the employee must be neither underqualified nor overqualified.

By the way, concluding a second contract (e.g. a contract of mandate) in addition to the employment contract, for the performance of additional tasks, would likely be found to be an attempt to circumvent the regulations, and thus illegal. As a result, the tasks performed under an additional contract would be deemed to be performed under the employment contract, with all of the consequences, in particular the need to compensate the employee for overtime work.

What can the employee do?

If the working time standards are exceeded, the employee may refuse to comply with the order to accept additional working hours. The employee may also notify the district labour inspector of the violation of working time standards, and the inspector may impose a fine for such actions on the person who ordered the work beyond the permitted limits, of up to PLN 30,000.

Finally, the employee may terminate the employment contract without observing the termination notice period, indicating a serious breach of employment obligations by the employer. In such a case, the employee is entitled to compensation in the amount of salary for the termination notice period, or if the employment contract was concluded for a definite period or for the time required to perform specific work, salary for the period of 2 weeks.

What can the game development studio do?

Working time restrictions apply to persons hired under an employment contract. When the person has the status of a service provider or is a separate business entity, the employment restrictions will not apply, and what is acceptable will be determined by the contract between the parties.

However, it should be borne in mind that persons providing work on this basis should be treated differently from employees, in particular regarding the degree of supervision (non-employees should have greater freedom to determine when, where and how they work) and the benefits they are entitled to. The construction and performance of such a contract is a subject for a separate publication. It should be remembered that in the event of a dispute, such a civil contract and the work performed under it will be assessed in light of its true nature. The name given to the contract is secondary. Therefore, when pursuing flexibility in assigning working hours, it is important not to fall into the employment contract regime, with all its consequences, including the obligation to pay overtime or per diem for business trips, retroactively for up to 3 years in arrears.

However, it must be honestly said that more and more game development studios are ceasing to regard it as a necessity to rush on finalising a game, and to regard crunch as inevitable. More and more developers are introducing best practice to prevent overwork—a no-crunch policy—often in consultation with employees and for the benefit of the company.

Dr hab. Marcin Wujczyk, attorney-at-law, Employment practice, Wardyński & Partners