On January 19, 2021, the U.S. Department of Labor (DOL) released an opinion letter analyzing the application of the Fair Labor Standards Act (FLSA) creative professional exemption to journalists.
Reflecting a rapidly changing media landscape, Opinion Letter FLSA2021-7 analyzes the current industry conditions that may make journalists exempt from the payment of overtime wages under the creative professionals exemption. The DOL Wage and Hour Division (WHD) concludes that the creative professional exemption test applies to all journalists, regardless of the size of their employer. While the methods and reporting requirements for journalists have changed significantly, the WHD asserts that for purposes of overtime exemption, it is “the journalists’ duties, not who employ[s] them – whether small-town or rural newspaper, major metropolitan daily newspaper, or local broadcast station – that are relevant to this determination.”
Media employers of all sizes should review this opinion letter and use the opportunity it provides to take a fresh look at journalist employee positions to make sure they are properly classified as exempt or non-exempt. It may also be appropriate to strategize with counsel about how the facts and findings in the opinion letter apply to certain employees or departments.
The Creative Professional Exemption and Journalists
To fall under the creative professional exemption, an employee must (a) be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684 per week; and (b) have the primary duty of performing work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.1 Musicians, composers, conductors, and soloists are examples of creative professionals. Historically, however, WHD regulations have treated journalists as employees whose duties may or may not qualify them as creative professionals.2 In 2004, the WHD amended the journalist subsection to the current version, which provides in part:
Journalists may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent, as opposed to work which depends primarily on intelligence, diligence and accuracy . . . [they] 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.3
The prior version of § 541.302(d) stated, “[i]t is the minority whose work depends primarily on ‘invention, imaging [sic], or talent’” that would therefore be exempt as creative professionals.4 Expanding this limiting language, the 2004 amendment was intended to reflect federal case law illustrating that journalist job duties “vary along a spectrum from the exempt to the nonexempt, regardless of the size of the news organization.”5
Opinion Letter FLSA2021-7 and the WHD’s Findings and Conclusions
Media employers of all sizes and mediums submitted the request for the opinion letter. The media employers described technological advancements that have changed journalism, new ways in which news is gathered and reported, and how this alters the nature of journalism throughout the industry, from global entities to local and community outlets. This description contrasts “just the facts” reporting of the past, where journalists often performed either “rewrites” or “leg activities,” with the current approach that emphasizes “context” and “content” reporting throughout the industry.
Journalists performing “context” reporting arguably exercise more control and creativity over their stories and articles than traditional reporters did under more tight control by their employer. The “context” reporting style, while not in itself decisive, is more likely to render a journalist using it subject to the creative professional exemption based upon the use of invention, imagination and originality.
To illustrate this trend, media employers pointed out the specialized education in journalism (usually through a four-year journalism or communications degree) of their employees, and requirements that reported stories contain substantive analysis and commentary. The opinion letter compiles a robust list of common duties for “context” style reporting, such as the creation of graphics, art or photography, maintaining and engaging social media, and analyzing developments and synthesizing data. Based on such facts presented by the requesting parties, the WHD “concludes that the journalists you describe who satisfy the primary duties test are exempt as creative professionals.”
In reaching this conclusion, the WHD relies upon two important points. First, the opinion letter reviews a string of federal cases specifically relating to journalists employed in small markets and/or community outlets. The WHD underscores that opinions historically declining to apply the creative professional exemption to “local” journalists predate the Supreme Court’s Encino decision, which instructs “that exemptions be afforded the same fair interpretation as any other statutory provision because the FLSA’s exemptions are ‘as much a part of the FLSA’s purpose as the [minimum wage and] overtime-pay requirement[s].’”6 Further, the rulings in these cases appear to hinge on the pre-Encino narrow-construction framework for assessing exemptions, while the post-Encino “fair reading” standard is more expansive in applying FLSA exemptions.
Second, the WHD emphasizes that the exemption analysis for journalists has always been a “case by case determination,” and that at least since the 2004 amendment, it has been clear that this analysis should be applied without regard to “the size of the news organization.”7 The WHD observes that “small-market journalists” are not presumed to be limited to routine work, and that “[j]ournalists whose primary duty requires ‘invention, imagination, originality, or talent’ are not confined to national networks and major media markets.” The WHD clarifies that previous case law and its own, past observations regarding the majority versus minority of journalists should not be construed in a way that favors exemption for major outlets and disfavors exemption for small outlets.