Monitor Loses Overtime Case p.

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By: George Garneau

Ending 12-year lawsuit, judge rules that reporters are not ‘professionals’ and are not exempt from overtime law sp.

CONCORD (N.H.) MONITOR reporters are not “professionals” for wage and hour purposes and are entitled to time-and-a-half pay for working more than 40 hours a week, a federal court has ruled.
The decision, issued seven years after the case was tried in U.S. District Court in Concord, dashes the newspaper industry’s latest hope of exempting reporters and photographers from overtime pay by classifying them as professionals. The ruling leaves intact a decades-old legal interpretation of reporters as journeymen entitled to overtime pay.
U.S. District Judge Shane Devine ordered the Monitor to pay almost $21,000 to 10 reporters and two photographers. The judgment includes compensation for the time elapsed but no interest. The amount is far less than the nearly $90,000 that the Department of Labor ordered the Monitor to pay in 1981.
Because his decision was based on the facts of the Monitor case, Devine said it has “limited precedential value.”
The case was watched closely, however, because the Monitor was challenging the government’s classification of reporters for purposes of wages and hours.
Monitor publisher George Wilson said he was disappointed but had not decided whether to appeal. He said he was examining the chances of success and whether the newspaper industry would help with the legal bills. Wilson said he had not asked for help and did not know how much the case has cost the 22,000-circulation paper.
The Newspaper Association of America, the largest newspaper trade group, supports exempting reporters from overtime pay but took no part in the case. The Newspaper Guild, the largest union of U.S. journalists, welcomed the decision as affirming its historical position. The Guild does not represent Monitor employees, but it filed a friend-of-the-court brief supporting the government’s position.
Guild president Charles Dale said he hopes that the decision ends attempts by publishers “to substitute flattery for pay.”
“Reporters and photographers across the land put in long, hard hours for which the overtime required by law is meager compensation,” Dale said. “Publishers who claim they are professionals too talented to receive it are guilty of a shameless deception. The Concord decision means that gambit can no longer be played.”
The Monitor always had paid overtime, but from 1978 to 1980, supervisors pressured reporters and photographers to report fewer hours than they worked. When the government went to court to collect, the Monitor raised the issue of whether reporters qualify as professionals, which under the Fair Labor Standards Act are exempt from overtime pay.
Challenging decades of precedent established by government and court interpretation of Labor Department rules, the Monitor argued that the accepted definition of reporters was outmoded and inconsistent with that used by other branches of the department that do classify journalists as professionals.
It argued that times had changed since legmen on assignment called in facts from a police station to rewrite men who crafted stories on typewriters in noisy newsrooms. Now, reporters, who have college and advanced degrees, regularly make their own assignments, analyze complex events and write stories on computers.
Recognizing changes in the business, the Monitor argued, the department would have to reclassify reporters as professionals.
Labor Department rules recognize the following kinds of professionals: “artistic” ? painters, actors, musicians, ad writers, floral designers, photographers, movie cameramen, short-story writers, columnists, editorial writers ? and “learned” ? accountants, nurses, pharmacists, teachers, engineers, actuaries, commercial pilots, biologists, astronomers, technical writers, medical technicians.
Devine rejected the bid for “learn-ed” status, which requires “professional knowledge through prolonged study.”
Citing evidence that 60% of journalists and a majority of Pulitzer Prize winners lack journalism degrees, he held, “A good liberal arts education and an ability to think and write clearly form the foundations for success in journalism.”
About “artistic” status, which requires work that is “original or creative in a recognized field of artistic endeavor,” Devine ruled, “There is no question but that some of the work product of the employees presented as evidence at trial demonstrated creativity, invention, imagination and talent. But the bulk of such evidence is not of this ilk.”
The preponderance of evidence “fails to demonstrate that the daily work of Monitor employees qualified them for designation as ‘artistic’ professionals,” Devine said.
He held likewise for photographers, ruling that the evidence failed to support the Monitor’s contention that “all newspaper photography is art.” One photographer was assigned 70% of his shots and another spent half of his time in the darkroom.
Devine also rejected the Monitor’s argument that the Department of Labor’s Occupational Outlook Handbook classifies reporters as professionals. Devine said the handbook was not intended to apply to wages and hours.
Mary Sepucha, NAA director of labor relations, said reporters today are far more educated than reporters were when labor regulations were approved in the 1940s so they should be classified as professionals. NAA maintains that the regulations are outdated.
In 1985 and again last year, the Labor Department announced plans to reconsider rules on the status of reporters under the Fair Labor Standards Act, but no changes were made.
The 1938 law requires overtime pay for all workers except professionals, executives and administrators. The law says the Labor Department will decide specifics, which it did during the 1940s.
Wilson said the department “added scores of professions to the list of professions since then, from flower arrangers to TV cameramen to TV news readers but has failed to even reconsider whether journalists are professionals.”
“We believe it takes as much or more creativity, originality and talent to write a story for a daily newspaper, based on complicated events, as it does to play somebody else’s music or read somebody else’s lines,” Monitor attorney Terry Shumaker said.
The case started with 54 current and former employees. The paper settled with 21 clerical employees, whom it paid between $90 and $900 each. The case was narrowed further to the 12 newsroom staffers, one of whom remains at the paper, who testified during the two-week trial in 1986. The ruling awards them between $100 and $4,200 each.
Wilson said the decision has no practical effect except “we face the same problem we had in 1978, that if a reporter or photographer . . . works time that they don’t report to us, we’re liable.”
? (Monitor publisher George Wilson) [Photo]

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