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Is news reporting creative? No, says U.S. government

By March 27, 2013 2 Comments

NewsroomAmidst shrinking budgets and the threat of layoffs or buyouts, newspaper staffers across the country are scrambling to meet deadlines and fill pages using fewer and fewer resources. Many reporters are entitled to overtime pay when they exceed 40 hours of work in a week, according to the Fair Labor Standards Act, but actually getting paid for overtime is another story as the recent TribLocal settlement illustrates (more on that below).

“Media companies are some of the worst abusers of the Fair Labor Standards Act,” says Donna Ballman, a Fort Lauderdale, Fla. labor attorney and author of Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards.

Lawsuits: Covering a school board does not take creativity

Often, media companies argue the “creative” exemption, which exempts from overtime journalists whose primary duties require invention, imagination, originality or talent over manual or physical work.

However, that approach didn’t work for the Chinese Daily News, a Chinese-language daily newspaper based in Los Angeles and New York.

In 2010, the Ninth U.S. Circuit Court of Appeals in San Francisco upheld an order for the company to pay $5.2 million ($3.5 million in damages and penalties plus more than $1.5 million in interest) to nearly 200 current and former employees including reporters, advertising sales staffers, and hourly employees. In that case, the judge ruled that CDN’s reporters were not exempt from overtime, citing the Department of Labor (DOL) regulation that reporters “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.”

More recently, the case against CDN was sent back to court over whether the case was properly classified as a class-action lawsuit. “If the class is thrown out, reporters might have to bring cases individually,” explains Ballman. “It doesn’t mean the exemption changes at all. Most reporters must still be paid overtime.”

Earlier this year, the Chicago Tribune settled a $660,000 class-action lawsuit over unpaid overtime with 46 TribLocal reporters. The employment lawyer who filed suit on behalf of the reporters argued that the reporters were not exempt from overtime because they did hard news, mainly covering school board and municipal meetings, which did not meet the DOL’s criteria for exempting creative employees.

New York and New Jersey employment lawyer Alix Rubin explains that when “a reporter’s job is to cover municipal council meetings, perhaps rewrite press releases and follow up on other types of stories in those communities, that’s pretty routine news. They’re probably not going to be exempt, but somebody who writes editorials and does big investigative stories probably would be exempt.”

In addition to performing creative or inventive work at least 50 percent of the time, reporters must make at least $455 per week to be exempted from overtime pay. The $455 per week threshold was set by the DOL in 2004, when it revamped overtime rules for the first time in over 50 years; that amount does not adjust for inflation and has not been updated since 2004, so it inevitably includes a larger portion of the journalism work force. Workers paid by the hour are not considered creative.

The new newsroom blurs the line

With newspaper staffs shrinking and more journalists being asked to take on more administrative, clerical or otherwise uncreative tasks, the distinction between creative and non-creative roles is getting murkier. “Employees may have started out as exempt, but as time goes on, people take on more duties and those duties may not be as creative,” explains Michelle Lee Flores, who focuses on employment litigation as a partner in the Los Angeles office of Fisher & Phillips. “It is not an easy analysis by any stretch of the imagination and that’s where these lawsuits come from.”

Issues with overtime pay can also arise because the 24/7 news cycle doesn’t neatly fit the traditional 9 to 5 workday. When reporters go to cover breaking news, they may feel pressure to exclude those extra hours from their timesheet if they didn’t get approval for overtime hours and want to avoid disciplinary action for going over their hours. “If the culture in the company is not to record it, then it’s not gonna get recorded,” says Rubin. “That shouldn’t be happening, but I think it does. It’s hard in this industry when employees are discouraged from recording their hours over the allotment.”

Of course, as smartphones and tablets create expectations of 24/7 connectivity, the overtime problem arises in other industries, too. A recent New York Times article about young people working around the clock mentions the term 22-22-22, meaning a 22-year-old willing to work 22 hours a day and earn just $22,000 a year (presumably without overtime but glad to be employed at all).

While some reporters may take issue with their work being classified as “uncreative,” Ballman points out that taking creativity or invention to extremes can get them into hot water. “If they’re engaging in invention and imagination, then they’re probably doing something wrong, so that’s why they’re not in this classification,” she says. “For the most part, most journalists are not gonna be exempt and that’s a good thing, not a bad thing.”

 Flickr photo courtesy of charlesdyer

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