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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.
to resign in disgrace. Publicly
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
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.
See more employment law posts on Donna
Ballman's blog, Screw You Guys, I'm Going Home.
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