Questions about new overtime rule

Mike Zinser

Question: Are journalists and photographers exempt from overtime under the Fair Labor Standards Act as creative professionals?

Answer: It will really depend on the facts in the particular situation. There are reported cases where reporters/columnists at papers such as The Washington Post and USA TODAY have been found to be exempt as creative professionals under the Wage and Hour Law.

While this is judged on a case-by-case basis, the U.S. Department of Labor interprets this exemption strictly. It typically adopts the position that reporters and photographers at weeklies and small daily newspapers are not creative professionals – and are therefore entitled to overtime after working 40 hours.

It is also entirely possible that, within one newsroom, some individuals could be deemed professional due to their unique duties, while others would be deemed not professional, due to the routine nature of their duties.

Question: How would you advise newspapers that have circulations under 4,000 with regard to the new overtime rules? Are papers under 4,000 exempt? Is the exemption for an individual newspaper or does a corporation that has multiple newspapers need to reach the 4,000 threshold when all of its circulations are aggregated?

Answer:  The following are exempt from the Wage and Hour minimum wage and overtime requirements, pursuant to the small newspaper exemption:

Any employee employed in connection with the publication of any weekly, semi-weekly or daily newspaper with a circulation of less than 4,000, the major part of which circulation is within the county where published or counties contiguous thereto.

Thus, an individual publication with circulation under 4,000 is exempt.

If one corporation owns multiple newspapers under the 4,000 circulation threshold, the question becomes whether they are separate publications, or must the circulation be aggregated? This is decided on a case-by-case basis. Key considerations will be as follows:

• Is all the writing, editorial and printing work done from the same location by the same employees for all the publications?
• Do all the newspapers have separate payrolls?
• Is the editorial content different?
• Is the advertising content different?
• Do the publications have different taxpayer ID numbers?
• Do the publications have separate U.S. Postal IDs?

The U.S. Department of Labor is very aggressive in trying to make overtime available to more people. Each case would need to be legally evaluated on an individual basis to reach a determination.

However, the May 18, 2016, Final Rule to increase the salary threshold for overtime exemption did not repeal the small newspaper exemption. That is statutory and cannot be repealed by a unilateral Department of Labor Rule.

Note: Nothing in this SNPA Legal Hotline Q&A should be relied upon as legal advice in any particular matter.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.

SNPA's free Legal Hotline for members – (844) 804-2016 – is designed to assist newspapers with a broad range of legal issues. Hotline attorneys and CPAs will tackle questions about circulation, independent contractors, labor and employment law, taxes, finances and accounting, employment benefits, open records, libel and privacy, and other issues newspapers encounter.

The attorneys and CPAs who will take calls from SNPA member newspapers are the best in the business:  The Bussian Law Firm PLLC, Fisher & Phillips, Way, Ray, Shelton & Co., P.C. and The Zinser Law Firm.