DOL ruling allows for reporters, photographers to be treated as salaried employees

Updated guidance says duties of small town and local journalists can qualify for the creative professional exemption to federal overtime rules; professional exemption is not limited to journalists working in major markets

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Yesterday, the United States Department of Labor published four opinion letters in response to requests for an opinion regarding an interpretation of various aspects of federal wage and hour laws. One of those requests, Opinion Letter FLSA2021-7, on behalf of unnamed members of the America’s Newspapers membership, requested the DOL provide guidance as to whether local small-town and community news source journalists are creative professionals under the Fair Labor Standards Act, and thus, exempt from the FLSA’s obligations to pay overtime as a result of federal law.

The FLSA’s creative professional exemption allows newspapers to pay reporters and photographers a salary as opposed to hourly if their primary duty requires “invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.” 29 C.F.R. 541.300(a)(2)(ii).

The DOL recognized that in light of technological advancements that have changed the way in which news is gathered, packaged and reported, including a focus on “context-based” reporting rather than the “just the facts” approach of decades past, prioritizing substantive analysis and commentary in reported stories, has changed the nature of the written and analytic component of journalism for print, broadcast and digital media employers.

The DOL recounted the history and early analyses of journalists and the professional exemption, noting that journalists’ status as creative professionals has been a question since the government’s first attempts to regulate wage-and-hour issues. The DOL concluded that, in contrast to prior readings of the FLSA’s creative professional exemption to overtime, it would give the creative professional exemption a “fair (rather than a narrow) interpretation.”

The DOL concluded that, under a fair reading of the creative professional exemption:

  • Journalists whose primary duty requires "invention, imagination, originality, or talent" are not confined to national networks and major media markets.
  • The FLSA should not be construed to find that the majority of local print, digital and broadcast journalists perform work that is not creative in nature.
  • Every journalist who performs the appropriate primary duties qualifies for the creative professional exemption, regardless of the size, prestige or geographic reach of the journalist’s employer (so long as their work product is not subject to substantial control by the employer, and the journalist meets the exemption’s salary level).

The DOL agreed that the following journalist duties and requirements are within the creative professional exemption:

  • Originating and developing creative, engaging, shareable, content-driven stories, relying on creativity, memorable storytelling and unique perspectives.
  • Identifying, researching and 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.
  • Maintaining composure and professionalism while continuing to execute their duties as a journalist, without direction, during live breaking news situations.

America’s Newspapers Board Member Camille Olson, of Seyfarth Shaw LLP, described the Opinion Letter as the first guidance provided by the Department of Labor that recognizes that technological changes and evolving consumer preferences for news stories that provide original, creative, individualized analysis and perspective on topics is not limited to work performed by journalists at major national news outlets, but also is applicable to work performed by journalists at local newspapers and television stations. The Opinion Letter also makes clear that, contrary to prior Department statements and positions, the routine editing of a journalist’s work product and editorial review does not constitute “substantial control” by the newspaper.

Olson encourages newspapers to take a fresh look at the specific duties of its reporters and photographers, guided by the guidance provided in the Opinion Letter. Unless a contractual or applicable local law requires a reporter or photographer to be treated on an hourly basis, the newspaper may have the option of treating the journalist on a salaried, overtime exempt, basis if their primary duty includes the above-described duties, and they are paid a salary of at least $684 a week or $35,568 annually. Olson predicts that the Opinion Letter’s modern, balanced, critical analysis of specific duties of today’s local journalists will serve as helpful guidance now, and also in the coming years, for newspapers, digital media companies and local broadcasters.

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