Reporters are Not "Creative" Professionals
What do you call a reporter who’s “creative” with the news?
A liar—or at least, that’s the traditional, “old school” view of journalism. Reporters are supposed to gather, verify, and relay facts. Right? So, how can they fit under the “creative professional” exemption to the Fair Labor Standards Act (“FLSA”)?
They generally don’t, as a California Appeals Court recently confirmed when upholding a $5.2mm verdict against a newspaper for wage and hour violations.
The Chinese Daily News—an American paper in California, despite the name—had been requiring its reporters to work 12-hour shifts, six days a week. That’s 72 hours per week—which is a lot more than the 40-hour threshold over which overtime pay is required under the FLSA and many states’ laws. The paper’s labor practice left it potentially on the hook for up to 32 hours of overtime pay per reporter per week.
The paper’s chief defense was to claim that its reporters were exempt from the overtime pay requirements as “creative professionals.” The “creative professional” exemption allows certain employees to be exempt from the overtime pay requirements if that professional’s primary duty is “work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.”
Invention? Imagination? In reporting the news? That doesn’t sound right, does it? Or at least, that’s what the Ninth Circuit U.S. Court of Appeals concluded in Wang v. Chinese Daily News. Not only do the expectations connected to a typical journalistic role run counter to a finding of the requisite level of imagination or invention, but the break-neck pace of Chinese Daily News reporters—writing two to five stories a day—left no time for creativity or even meaningful analysis. Instead, the reporters simply gathered and reported—in the most literal sense of the word—facts about events relevant to the community served by the paper. Under a Department of Labor regulation cited by the Wang Court, journalists “who simply collect and organize information that is already public, or do not contribute a unique or creative interpretation or analysis to a news product, are not likely to be exempt” from overtime pay.
In short, to be a “creative professional,” one must be a “creative professional”—and generally, newspaper reporters aren’t. Any writer whose role, like that of the Chinese Daily News reporters, is primarily to aggregate and repackage facts is probably not exempt from overtime pay. That’s a lesson that many businesses, not only traditional news businesses, should bear in mind as they produce online newsletters and blogs that only report, without analysis or creative insight. If anything, the faster-than-fast pace of online reporting is even less likely to support a finding that reporters are exempt creative professionals than did the newspaper business involved in Wang.
What about TV journalist? I am a reporter/anchor in a medium market in CA where we now also do the jobs of photographers as well as our usual reporting duties. Some reporters who fill in as anchors are paid hourly and receive overtime. I am one of only three on-air employees here who are salaried and do not receive OT. A former anchor/reporter here who did the exact same job I am now doing was also hourly and got OT. I have asked before to be reclassified as nonexempt and was turned down. I was planning to ask again and expect to be turned down again. This company also makes it impossible for employees to take true meal breaks and often times doesn't "approve" OT so some employess work OT in order to get their job done then management says sorry that "wasn't approved" or "I won't approve that"... but it is work already done... and work that had to be done or the story wouldn't have made it on the air.
These situations are very fact specific and may involve issues of state law as well. It is best to consult with an attorney familiar with the law of your jusidiction who can speak with you about all of the issues raised and help determine if there is something to pursue.