JOURNALISTS/REPORTERS  

The Fair Labor Standards Act (FLSA) requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a 7-day workweek.

Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees.  Section 13(a)(1) and Section 13(a)(17) also exempts certain computer employees.

• To qualify for the exemption, employees must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. 

The rules did not change the duties test for the "creative professional" exemption -- the most common exemption test for reporters.  The creative professional exemption applies if the employee’s primary duty is work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor (the fields of music, acting, writing and the graphic arts), as opposed to routine mental, manual, mechanical or physical work.

• The term "investigative journalist" is an invention of the media itself. The term was created to give a special status to reporters who consistently exercise energy, imagination, resourcefulness, accuracy, inventiveness, originality, judgment, intelligence and persistence to collect, analyze and creatively write well above the usual "who, what, where, when, why and how" level of a routine news story.

• The public has a presumption that the work of all journalists and reporters is "investigative" in nature. Sadly, even those who want to be known as investigative reporters, don't truly qualify. 

Work that can be produced by someone with only general manual or intellectual ability and training is not exempt as "creative".  The requirement of creativity distinguishes the work of a creative professional from work that primarily depends on intelligence, diligence and accuracy.

Since employees’ duties vary widely, and the creative professional exemption depends on how much invention, imagination, originality or talent is actually exercised by the employee, the determination of whether an employee is exempt as a creative professional must be made on a case-by-case basis.

• Relying upon federal case law, the new 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.

• Employees who re-write press releases or who write standard recounts of public information by gathering facts on routine events are not exempt creative professionals.  Reporters whose work products are subject to control by their employer also do not qualify as exempt creative professionals.

• 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 editorials, opinion columns or other commentary; or to act as a narrator or commentator.

Journalists’ duties vary along a spectrum from the non-exempt 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 exempt.

There is no “across the board” exemption for journalists.  Each exemption determination must be made on a case-by-case basis. The majority of reporters who simply collect and organize public information, or do not contribute a unique or creative interpretation or analysis, are not exempt.

Nothing in the new rules relieves employers from their contractual obligations to reporters under union contracts.  Reporters who are paid by the hour must be paid at the overtime rates when they work more than 40 hours in a 7-day work week.

10/24/07