The U.S. Department of Labor has released an opinion concluding that many more journalists now may qualify as “exempt” employees under federal wage and hour requirements. This frees up news companies to reconsider alternatives to overtime pay—providing news management and employees alike with greater flexibility in the ever-evolving 24/7 news cycle.
The Fair Labor Standards Act (FLSA) requires that covered employees receive at least the minimum wage for all hours worked and overtime pay at not less than time-and-one-half the regular rate of pay for all hours worked over 40 in a work week. Certain categories of employees are exempt from these requirements if they are paid a salary of at least $684 per week and meet certain duties tests, which vary based on the nature of the exemption. The major categories of exemption are executive, administrative, and professional employees, including creative professionals.
Under the creative professional exemption, the employee’s primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. The governing regulations distinguish creative activities from those that rely on intelligence, diligence, and accuracy. Traditionally, the DOL and the courts interpreted these exemptions narrowly in order to apply the minimum wage and overtime requirements to as many workers as possible. This meant that journalists were historically heavily scrutinized and often deemed non-exempt because they were considered to be simply collecting and conveying the facts. By contrast, journalists who wrote opinion columns, as opposed to reporting on news, were more often found to be exempt because their work was deemed to involve imagination and originality. Many of those cases further implied that journalists who were not working for national networks or major media markets could not be exempt.
In 2018, the U.S. Supreme Court decided Encino Motorcars LLC v. Navarro et al., 138 S. Ct. 1134. (2018), which rejected the narrow view of FLSA exemptions and held that they must be given a fair reading. Applying that broader analytical test to small-town and local journalists in a recent opinion letter, the DOL found that such individuals can still qualify for the creative professional exemption if they have the relevant primary duties. Thus, the circulation area of the journalist’s media is not a determinative factor in the exemption analysis.
The DOL explained that journalists whose primary duties include performing on the air in radio, television, or other electronic media; conducting investigative interviews; analyzing public events; writing editorials, opinion pieces, or other commentary; or acting as a narrator or commentator may be exempt under the FLSA. 29 C.F.R. § 541.302(d). On the other hand, if journalists simply collect, organize, and record public or routine information, or if they do not contribute a unique interpretation or analysis to a news product, then they are likely not exempt. For example, this would include those who merely rewrite press releases or who draft standard recounts of publicly available information, as well as those whose work is subject to substantial oversight by the employer.
The opinion letter responds to a question submitted by a group of unnamed employers in the print, broadcast, and digital media industries in the United States. The requestor states that its journalists’ duties include:
- Originating and developing creative, engaging, shareable, content-driven stories and live shots (including the story ideas for them), relying on creativity, memorable storytelling, and unique perspectives;
- Identifying, researching, and, when appropriate, interviewing sources of background information, sources of current information, subjects, and witnesses;
- Composing and producing unique and captivating stories;
- Using creative photographic techniques to capture stories through photographs and video presentations;
- Using creative techniques, such as graphics and new forms of media (viewer pictures, webcam interviews, etc.), to enhance stories;
- Identifying and synthesizing documents and data from numerous sources to develop original content, sometimes for specialized rather than general audiences, independent of daily news events;
- Interpreting and analyzing developing news stories;
- Maintaining a strong, creative, and engaging social media and community presence to engage readers or viewers directly to drive readership or viewership;
- Operating autonomously and without constant supervision, subject to occasional check-ins and final editorial review for print or broadcast; and
- Maintaining composure and professionalism while continuing to execute duties as a journalist, without direction, during live, breaking news situations.
In considering those enumerated duties, the DOL accepted that changes in the journalism profession have resulted in a change from “just the facts” reporting to “context-based" reporting. The DOL further accepted that such context-based reporting inherently requires greater autonomy, independence, and originality, particularly for journalists at smaller media outlets. Thus, reporting the news may be an exempt primary duty if it requires originality and invention and entails little employer control.
This opinion letter represents a positive development for employers in the media space, as more employees will likely fall within the creative professional exemption. Although the leadership of the DOL will change and some DOL interpretations will as well, the requirement to give exemptions a fair reading, rather than narrowly construing them, cannot be reversed without congressional action, which is unlikely. In addition, this opinion letter reflects changes in the nature of the work being performed by journalists, rather than a change in the duties test for the creative professional exemption, making it less likely to be overturned by a new administration. Before reclassifying employees as exempt, however, employers should also confirm that their state has not adopted additional rules.
Attorneys in Ballard Spahr’s Labor and Employment Group regularly assist media organizations with wage and hour compliance issues and represent employers in wage and hour audits conducted by state and federal agencies, internal classification audits, and litigation related to classification issues. Attorneys in Ballard Spahr’s Media and Entertainment Law Group help news organizations ranging from local freelance journalists to international press navigate some of the law’s most challenging issues—during the editing process and in court.
Copyright © 2021 by Ballard Spahr LLP.
(No claim to original U.S. government material.)
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.
This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.