• Federal Appeals Court Finds Newspaper Reporters Not Exempt as FLSA Creative Professionals
  • October 13, 2010 | Authors: Jamerson C. Allen; Mark S. Askanas
  • Law Firm: Jackson Lewis LLP - San Francisco Office
  • In a case of first impression for the circuit, the federal appeals court in San Francisco has held that a newspaper’s reporters were non-exempt employees and entitled to overtime pay.  Wang v. Chinese Daily News, Inc., No. 08-55483 (9th Cir. Sept. 27, 2010).  The Court rejected the newspaper’s contention that its reporters were exempt “creative professionals” under the Fair Labor Standards Act because the newspaper’s articles lacked the “sophistication of the national level papers.”  Furthermore, the Court found the reporters’ daily workload prevented them from conducting detailed news analysis or investigative journalism - tasks that were essential for the exemption to apply.  The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

    In Wang, the three plaintiffs worked as reporters for a Chinese-language daily newspaper that had print editions in Los Angeles, New York and other American cities.  They sued the paper for, among other things, alleged unpaid overtime under the FLSA.  They were joined by more than 100 other plaintiffs in the action.

    The parties moved for summary judgment regarding whether the reporters satisfied the creative professional exemption.  Ruling that the reporters did not, the district court granted the plaintiffs’ motion and awarded $7.7 million in damages.  The newspaper appealed.

    Creative Professional Exemption
    Under FLSA regulations, to qualify as an exempt creative professional, “an employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as opposed to routine mental, manual, mechanical or physical work.”  29 C.F.R. § 541.302(a).

    Journalists may fall within the exemption if their primary duty is:

    • conducting investigative interviews;
    • analyzing or interpreting public events;
    • writing editorials, opinion columns or other commentary; or
    • acting as a narrator or commentator.

    However, reporters who only collect, organize and record information that is routine or already public, or do not interpret or analyze the news would not be exempt.

    As it previously had not addressed the applicability of the creative professional exemption to reporters, the Court reviewed the cases of the U.S. Courts of Appeals for the First and Third Circuits.  Both circuits had ruled that reporters at small, community papers who wrote articles about local events using public information and press releases were non-exempt employees.  Reich v. Newspapers of New England, Inc., 44 F.3d 1060 (1st Cir. 1995); Reich v. Gateway Press, Inc., 13 F.3d 685, 700 (3d Cir. 1994).  Although those reporters also periodically wrote feature articles or editorials, they were non-exempt because they did not engage in “the type of fact gathering that demands the skill or expertise of an investigative journalist for the Philadelphia Inquirer or Washington Post, or a bureau chief for the New York Times.”  Gateway Press, 13 F.3d at 700.

    The creative professional exemption was found applicable in Sherwood v. Washington Post, 871 F. Supp. 1471, 1482 (D.D.C. 1994).  The district court held that a Washington Post reporter whose “job required him to originate his own story ideas, maintain a wide network of sources, write engaging, imaginative prose, and produce stories containing thoughtful analysis of complex issues” was exempt.

    Appeals Court Finds No Exemption
    The Court concluded in this case that the plaintiffs did not fall within the creative professional exemption.  Although the newspaper was not as small as the community newspapers in Newspapers of New England and Gateway Press, the Court determined that Chinese Daily News was more akin to the papers in those cases than to sophisticated national papers where the small number of elite exempt journalists would be found.

    The Court also noted that “the intense pace” at which the reporters worked precluded them from “engaging in sophisticated analysis,” conducting investigative interviews or writing editorials or other commentary, which are the hallmarks of the exemption.  To the contrary, most of the reporters’ articles involved “standard recounts of public information [created] by gathering facts on routine community events.”

    The Court further observed that characterizing the reporters as exempt would “be inconsistent with the Department of Labor’s intent that ‘the majority of journalists . . . are not likely to be exempt.’”  Accordingly, the Court affirmed summary judgment and a $7.7 million award against the newspaper.