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Friday, March 8, 2013

Are Journalists Exempt From Overtime?

A $660,000 settlement for reporters recently caused both celebration and ire in the journalism community. The celebration was for a victory on behalf of hard-working reporters everywhere. Many reporters work deadly hours for little pay. This decision provides them with some relief, requiring newspapers to pay them overtime for any week they work over 40 hours.

The consternation was caused by the reason for the settlement. The basis for the suit was that journalists are not "creative professionals." This left some reporters shaking their heads. Not creative? But I'm a writer! Of course I'm creative!

Really? Remember what happens to reporters who get too creative. They get unemployed. Forced to resign in disgrace. Publicly outed. Canned. And even sued. Of course, sometimes they get paid big bucks to talk about journalistic ethics.

The Fair Labor Standards Act requires most employers to pay overtime to most employees who work over 40 hours per week. Some employees are exempt, but most are not. One of the exemptions is for "creative professionals." The exemption is quite specific. Being an exempt creative professional involves  invention, imagination, originality or talent, as opposed to intelligence, diligence and accuracy. It also requires that the employer not exercise substantial control over the creative professional's work product.

Most print journalists are probably not exempt, because their work is subject to a significant amount of control by their employers. Journalists who perform on radio or TV, who do investigative interviews, who do opinion pieces, editorials or other commentary are probably exempt. On the other hand, a journalist who simply reads press releases over the air is probably not a creative professional. 

This is not the first case where journalists were found not to be exempt from overtime. A case in 2010 in California resulted in a $5.2 million verdict in favor of reporters of the Chinese Daily News. Unless the journalist does analysis of a news story, and their work is not subject to editing and other control by the paper, then they are probably exempt.   

Here’s what the Department of Labor says about this issue:

Relying upon federal case law, the final regulations clarify that employees of newspapers, magazines, television and other media are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product. For example, reporters who rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals. Reporters whose work products are subject to substantial control by their employer also do not qualify as exempt creative professionals. However, employees may be exempt creative professionals if their primary duty is to perform on the air in radio, television or other electronic media; to conduct investigative interviews; to analyze or interpret public events; to write editorial, opinion columns or other commentary; or to act as a narrator or commentator. Thus, journalists’ duties vary along a spectrum from the nonexempt to the exempt. The less creativity and originality involved in their efforts, and the more control exercised by the employer, the less likely journalists are to be considered exempt. There is no “across the board” exemption for journalists; nor has there ever been. Rather, each determination must be made on a case-by-case basis, as is the case with all job classifications. The majority of journalists, who simply collect and organize public information, or do not contribute a unique or creative interpretation or analysis, are not likely to be exempt.

If newspapers want to have exempt employees, maybe they should cut back on that editorial pen and let reporters choose the stories they want to cover. Since that will probably never happen, newspapers should be ready to pay overtime to their hard-working reporters.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.