Q. Aren't television news employees, radio DJ's and TV and radio producers exempt as creative professionals?
A. Many people mistakenly believe that simply because an employee is paid a salary means that the employee is automatically exempt from the overtime pay requirements. This belief is not true. Whether an employee is exempt is determined by what the employee’s job duties are.
All of the "creative" workers that I have talked to have been automatically classified by their employers as exempt from the overtime requirements of the Fair Labor Standards Act. Times have changed in the television and radio business. Ever since the Janet Jackson "wardrobe malfunction" during the Super Bowl, the FCC has been cracking down on broadcasters. Broadcasters have in turn cracked down on their on air talent and severely restricted what they can say and do on the air. In addition, the stations are trying to do business with as few employees as possible and requiring their on air talent to do a lot of work off the air. Most of the people I talk to are working far in excess of 40 hours a week with no extra pay for the overtime hours.
A person who works as a creative professional is exempt from the overtime requirements. The United States Department of Labor defines a creative professional as an employee who’s “primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.” 29 CFR sec. 541.302(a). “To qualify for exemption as a creative professional, the work performed must be “in a recognized field of artistic or creative endeavor. This includes such fields as music, writing, acting and the graphic arts.” 29 CFR 541.302(b).
Frequently people employed by television stations and networks, radio stations and newspapers are automatically classified as exempt with the employer claiming an employee as exempt as a creative professional. The courts have been addressing the creative professional exemption since shortly after the passage of the FLSA in 1938.
The key question is what does it mean to “perform work requiring invention, imagination, originality or talent” in a recognized field of artistic or creative endeavor? The courts have routinely held that the answer is fact specific and each case must be decided on its own facts.
They key to determining whether invention, imagination, originality or talent are being exercised by the employee is whether the aim of the employee’s work is to recreate or communicate an experience of the artist.
The courts have been requested to decide whether various workers in the news industry are exempt as creative professionals. The news industry serves as a good example for various other occupations that deal with the creative professional exemption. In general, the courts have found that reporting the news does not involve invention, imagination or originality. It does not involve an expression of the experience of an artist. Reporting what happened is not creating what happened. Producers of news have also been found to be non-exempt for the same reasons. See Dalheim v. KDFW-TV, 918 F.2d 1220 (5th Cir. 1990). See
and Reich v. Newspapers of New Engl., 44 F.3d 1060 (1st Cir. 1995).
On the other hand, "top flight" columnists who write about what they want and express themselves in their columns have been found to be exempt. See Sherwood v. Washington Post, 871 F.Supp. 1471 (D.D.C. 1994).
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