The Digital Sweatshop: Why Heightened Labor Protections Must be Implemented Before Crunch Causes the Backbone of the Video Game Industry to Collapse

Abstract

“Crunch”— the cyclical labor practice used to ensure delivery of content for commercial release within a certain time frame—is an unregulated and unconscionable convention. While common in a variety of industries, it is particularly disruptive in, and the root cause for, many of the video game industry’s shortcomings. Crunch in the video game industry is most commonly comprised of excessive, and often lengthy, durations of mandatory unpaid-overtime hours and an unspoken stigma for any who condemn a studio’s policies on a rushed production. Video game crunch is a direct result of the limited labor protections currently afforded to individuals within the industry and the rapid expansion of video games as a form of mainstream entertainment globally. Thus far, only one other scholarly article addresses the labor concerns facing the video game industry, and that article has a very narrow focus on how a recent development in California’s approach for classifying an individuals’ employment status would affect the video game workforce’s ability to unionize in that state. Currently, there is no other academic literature specifically addressing crunch labor conditions, and my Article fills this substantial gap by providing readers with a much broader analysis of the issues. This Article provides a general background into the rise of the video game industry into a global phenomenon and a detailed understanding of what crunch entails to capture the significance of its consequences. It then provides an analysis of the relevant federal and state labor provisions for which any redress must be relied upon. As Texas is the second-largest hub for video game development in the United States and its industry reach is growing in response to the economic incentives provided by Governor Abbott, this Article takes a targeted approach for addressing the industry-wide problem. This Article advocates against the use of unionization as a means of redress for the industry’s workforce, arguing it would be largely ineffective given the current state of the industry. This Article alternatively advocates for Texas to pass the substantive provisions of a labor act developed in the Article in order to address the core issues behind crunch. Specifically, this Article argues that the Texas state legislature should be tasked with expanding upon the minimum labor protections already afforded to its citizens by the federal Fair Labor Standards Act by passing provisions that include the following: (I) limiting the amount of overtime that can be mandated from an individual, (2) introducing the applicability of overtime pay provisions beyond who is currently considered under the Fair Labor Standards Act, and (3) expanding anti-retaliation provisions beyond internal complaints from an individual. The State must make this legislative push. Without it there will be no sustainable path for unionization to become a viable option for approaching labor concerns in the industry’s future. The economic benefits provided to the State by the success of this industry and the Texas legislature’s worker-centric ideology warrant this moderate legislative intervention.