New Overtime Rules Could Exempt Many Journalists

By: Lucia Moses

Newspapers have historically paid their journalists overtime — even though they’ve long felt these employees are professionals, and thus not entitled to overtime pay under the federal Fair Labor Standards Act (FLSA).

That could change if the Department of Labor adopts a proposal to relax the definition of who is eligible for overtime. The revisions would be the first to the regulations in more than half a century. The proposed rules ended a 90-day comment period June 30, and could be adopted later this year.

Management and labor advocates agree that the new definitions would exempt most journalists from overtime pay by considering them “creative professionals” to reflect that reporting today is heavy on context and analysis.

The proposed changes recognize that “journalists require creativity, they require skills, they require a high level of performance,” said Rene Milam, vice president and general counsel for the Newspaper Association of America, which generally supports the proposed changes. The NAA has long argued that the government’s position on journalists was based on a 1940s-era news organization that doesn’t reflect how they work today.

“I think every publisher is going to re-evaluate the positions at their paper, and I’m sure there’ll be some shifting,” Milam said.

Bernie Lunzer, secretary/treasurer for The Newspaper Guild-Communications Workers of America, worried that the change will mean longer hours for more news employees, and predicted a tug-of-war at Guild-represented papers, with publishers trying to remove contract language providing for overtime pay.

“This is particularly unfortunate for journalists who already often give uncompensated time to their papers out of a sense of duty,” Lunzer wrote in an e-mail to E&P.

Courts have given mixed guidance on the journalist-overtime pay issue. In 1993, a federal court ruled that reporters and photographers for the Concord (N.H.) Monitor were not professionals under the law, and were owed $21,000 in back pay. Two years later, a federal judge ruled that a former Washington Post reporter was an artistic professional and not entitled to overtime pay under the FLSA.

“I think there probably are many companies who are paying overtime now because of the way the current regulations have been interpreted,” said L. Michael Zinser, a Nashville, Tenn.-based labor lawyer with a concentration on media. “Rather than embroil themselves in litigation, I think they are just paying overtime.”

Of lesser impact, observers said, is a proposed relaxation of the definition of ‘outside salesperson.’ The revision, they noted, could lead to more reps being classified as outside salespeople who are exempt from overtime pay.

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