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December 01, 2010
Can Reporters Be ‘Creative’?

For purposes of the Fair Labor Standards Act (FLSA) some journalists may qualify as exempt professional employees. But they must conduct investigative interviews, write editorials, or provide analysis of events. A group of California reporters have been arguing in court that they should not be exempt and are owed back pay.

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What happened. Wang and scores of other Chinese-language reporters work or have worked for the Chinese Daily News at offices in San Francisco and a suburb of Los Angeles. In 2004, they asked a judge to certify them as a class that would charge the newspaper with overtime and meal and rest break abuses under both federal and state wage and hour laws. Along the way, the judge moved to rebuke newspaper management for coercing employees to drop out of the lawsuit, but the case eventually went to trial—a lengthy one—in late 2006.

The jury awarded the plaintiffs more than $2.5 million in back pay, to which the judge later added more damages, penalties, and interest, pushing the total to more than $5 million. The newspaper appealed those awards to the 9th Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

What the court said. Newspaper management argued that the reporters should be covered by the “creative professional exemption” under FLSA. Furthermore, it contended that it shouldn’t be charged with violations of the California Labor Code, Unfair Competition Law, and Business & Professional Code based on the same facts as the federal charge, because federal law should preempt state laws.

Appellate judges said the 9th Circuit had not applied the creative professional exemption to a reporter before but that other appeals courts have done so. One court found that a “high-level investigative journalist” was exempt, while another ruled that community newspaper reporters were not. The reporters here wrote several stories each day, working at an “intense pace,” leading judges to conclude that they could not investigate or analyze any of them. Judges also upheld findings of violations of both state and federal laws. So the district court’s awards were affirmed. Wang v. Chinese Daily News, U.S. Court of Appeals for the 9th Circuit, No. 08-55483 (2010).

Point to remember: FLSA says that professional exempt employees primarily perform “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.”

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