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FREEMAN v. NBC

August 20, 1993

JACOB FREEMAN, et al., Plaintiffs,
v.
NATIONAL BROADCASTING COMPANY, INC., Defendant.



The opinion of the court was delivered by: KATHLEEN A. ROBERTS

 KATHLEEN A. ROBERTS, United States Magistrate Judge:

 This action was commenced in 1985 by 149 employees of the news division of defendant National Broadcasting Company ("NBC"), who contend that NBC has improperly calculated the compensation they are entitled to receive pursuant to the overtime provision of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 207. *fn1" The overtime provision provides that:

 
no employer shall employ any of his employees * * * for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

 29 U.S.C.A. § 207(a)(1) (West 1965 & Supp. 1992). The statute further provides that the "regular rate" includes "all remuneration for employment paid to, or on behalf of, the employee." 29 U.S.C.A. § 207(e).

 Plaintiffs are members of the National Association of Broadcast Employees and Technicians, AFL-CIO ("NABET"). They work under collective bargaining agreements that establish their base pay and provide for the payment of various "fees" when they perform specific job functions on a given day. The agreements also provide for overtime payments when plaintiffs work more than forty hours in a week, at one and one-half times the plaintiffs' usual hourly compensation.

 NBC calculates plaintiffs' overtime based on the hourly equivalent of their base pay alone. Plaintiffs contend that they are covered by the FLSA and that their "fees" should therefore be included in the base wage for purposes of calculating their overtime. NBC asserts that under § 13(a)(1) of the FLSA, 29 U.S.C. § 213(a)(1), plaintiffs are exempt as administrative and/or professional employees and, thus, not entitled to overtime. *fn2"

 NBC does not dispute that under the FLSA plaintiffs' "fees" are part of their "regular rate" of compensation. See 29 U.S.C.A. § 207(e)(1)-(7). Thus, if plaintiffs are covered by the FLSA's overtime provision, they are entitled to overtime calculated on the basis of one and one-half times the hourly equivalent of their "base pay" plus their "fees."

 The actions brought by Freeman, Brown and Garner were tried without a jury in February and March 1990; post-trial briefing was completed in May 1991.

 I find that NBC has failed to prove that plaintiffs are exempt from the FLSA's overtime provision. I find, however, that NBC's failure to compensate employees for overtime was not a "willful" violation of the FLSA. *fn4"

 APPLICABLE LAW

 The Fair Labor Standards Act

 The legislative history of the FLSA suggests three purposes for the overtime provision. Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1175-76 (7th Cir. 1987). First, the overtime provision was intended to prevent workers who would willingly work a long week from taking jobs away from workers who prefer a shorter week. Id. at 1176. Second, Congress intended to spread work and reduce unemployment by imposing a penalty on employers who hire fewer workers and work them longer hours. Id. Finally, the FLSA was intended to protect workers from "substandard wages and oppressive working hours." Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 739, 67 L. Ed. 2d 641, 101 S. Ct. 1437 (1981). Congress reasoned that people working longer than forty hours a week could become tired and careless and thereby endanger themselves or their co-workers. Thus, the overtime provision was intended to protect the economic and physical wellbeing of workers. Mechmet, 825 F.2d at 1176.

 Although the FLSA sweeps broadly to encompass a wide range of workers, Congress has chosen to exclude certain employment categories from overtime protection. The FLSA expressly exempts from its overtime requirements those "employed in a bona fide executive, administrative, or professional capacity." *fn5" 29 U.S.C.A. § 213(a)(1). In addition, the FLSA expressly excludes certain employees in the field of broadcasting from its overtime provision. Section 213(b)(9) exempts:

 
any employee employed as an announcer, news editor, or chief engineer by a radio or television station the major studio of which is located (A) in a city or town of one hundred thousand population or less, according to the latest available decennial census figures * * * except where such city or town is part of a standard metropolitan statistical area * * * which has a total population in excess of one hundred thousand, or (B) in a city or town of twenty-five thousand population or less, which is part of such an area but is at least 40 airline miles from the principal city in such area.

 29 U.S.C.A. § 213(b)(9).

 Plaintiffs contend that by expressly exempting small town television news editors from FLSA coverage, Congress implicitly provided protection under the statute for television news editors in larger towns and cities. NBC rejects this argument as "disingenuous and illogical," emphasizing that it does not make the claim that plaintiffs are exempt under § 213(b)(9), but rather that plaintiffs are exempt under § 213(a)(1) as administrative and/or professional employees.

 The Labor Department has made the following general explanatory statement with regard to the exemption of certain radio and television employees from overtime pay requirements under § 213(b)(9):

 
Some employees of radio and television stations perform work which may be exempt from the minimum wage and overtime requirements under section 13(a)(1) of the Act. This 13(a)(1) exemption applies to employees employed in a bona fide executive, administrative or professional capacity * * * as these terms are defined and delimited by regulations of the Secretary. This exemption continues to be available for employees of radio and television stations who meet the requirements for exemption specified in part 541 of this chanter. The section 13(b)(9) exemption, which is an exemption from the overtime provisions of the Act, but not from the minimum wage requirements, applies to a limited classification of employees employed by small market radio and television stations whose employment meets the requirements for the exemption.

 29 C.F.R. § 793.2 (1992) (emphasis added). The Labor Department therefore clearly recognizes that the exemption for news employees in larger markets "continues to be available" pursuant to § 213(a)(1), notwithstanding the provisions applicable to certain small town broadcasting employees under § 213(b)(9).

 The Department of Labor Regulations and Interpretations Concerning Exemption Under § 213(a)(1)

 Although the FLSA itself does not define the terms "executive," "administrative," and "professional," the statute does authorize the Secretary of the Department of Labor ("the Secretary") to define and delimit these terms by regulation. 29 U.S.C.A. § 213(a)(1). The Secretary has in turn delegated this power to the Administrator of the Wage and Hour Division of the Department of Labor ("the Administrator"), *fn6" 29 C.F.R. § 541, who has promulgated both "regulations" and "interpretations" defining the exemptions from FLSA coverage. *fn7"

 Not all agency determinations deserve an equally high degree of judicial deference. *fn8" However, courts have recognized that the Administrator's policies with regard to the FLSA's overtime provision are based upon specialized experience and greater information than a judge would be likely to learn in a particular case. The Supreme Court has held that while the Administrator's rulings and interpretations in this context are "not controlling upon the courts by reason of their authority," they "do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance" and are often entitled to considerable weight. Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944); see Mabee v. white Plains Publishing Co., 327 U.S. 178, 90 L. Ed. 607, 66 S. Ct. 511 (1946); cf. Dybach v. Florida Dep't of Corrections, 942 F.2d 1562 (11th Cir. 1991) (regulations issued by the executive officer charged with administration of a statute are controlling when issued to fill a gap left by Congress, unless they are arbitrary).

 The Applicable Test

 The Administrator has promulgated regulations and interpretations that establish a "short test" and a "long test" to determine if a person is "a bona fide executive, administrative, or professional" employee. See 29 C.F.R. §§ 541.1(f), 541.119, 541.2(e)(2), 541.214, 541.3(e), 541.315. Thus, there are two methods by which an employee may be found exempt from the FLSA's overtime provision. The long test, for employees earning less than $ 250 per week, requires that certain detailed criteria be met. The short test, applicable to employees who earn more than $ 250 per week, contains fewer requirements. See id.; Dalheim v. KDFW-TV, 918 F.2d 1220, 1224 (5th Cir. 1990); Donovan v. Burger King Corp., 675 F.2d 516, 518 (2d Cir. 1982).

 The short test applies to employees who receive more than $ 250 per week in compensation "on a salary or fee basis." 29 C.F.R. §§ 541.2(e)(2), 541.3(e). According to the Administrator:

 
(a) An employee will be considered to be paid "on a salary basis" within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked. This policy is also subject to the general rule that an employee need not be paid for any workweek in which he performs no work.
 
* * * *
 
(b) Minimum guarantee plus extras. It should be noted that the salary may consist of a predetermined amount constituting all or part of the employee's compensation. In other words, additional compensation besides the salary is not inconsistent with the salary basis of payment.

 29 C.F.R. § 541.118; see also Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 615-16 (2d Cir. 1991), cert. denied, 121 L. Ed. 2d 222, 113 S. Ct. 298 (1992); Whitmore v. Port Authority of New York & New Jersey, 907 F.2d 20, 21 (2d Cir. 1990) (distinguishing salaried and hourly employees).

 The following provisions pertaining to permissible and impermissible deductions are relevant to this case:

 
(a)(1) An employee will not be considered to be "on a salary basis" if deductions from his predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business. Accordingly, if the employee is ready, willing, and able to work, deductions may not be made for time when work is not available.
 
* * *
 
(a)(4) Deductions may not be made for absences of an employee caused by jury duty, attendance as a witness, or temporary military leave. The employer may, however, offset any amounts received by an employee as jury or witness fees or military pay for a particular week against the salary due for that particular week without loss of the exemption.

 29 C.F.R. § 541.118.

 Plaintiffs contend that they are paid "wages" rather than "salary," and that the court must therefore apply the long test. The facts pertaining to this issue are not in dispute. Each of the plaintiffs is paid a base amount of $ 895 per week plus certain fees pursuant to the collective bargaining agreement between NBC and NABET. All three plaintiffs are covered by Article N of the agreement, entitled "Newswriters Agreement - New York." Freeman Ex. 10 at 186. The fact that plaintiffs' pay varies from week to week because they are also paid fees is not inconsistent with the salary basis of payment. *fn9" See 29 C.F.R. § 541.118(b). Plaintiffs also contend that they are not salaried because they do not receive any fees when they are out sick, on jury duty, or away on vacation and when a show is either preempted or cancel led. They do, however, continue to receive their base pay. Under these circumstances, fees are "extras" added to a "minimum guarantee," see 29 C.F.R. § 541.118(b), and a reduction in pay due to loss of fees is not inconsistent with a salary basis of payment.

 In sum, I find that plaintiffs' base compensation of $ 895 per week is "a predetermined amount constituting all or part of [plaintiffs'] compensation, [and is] not subject to reduction because of variations in the quality or quantity of the work performed." 29 C.F.R. § 541.118(a). Accordingly, I find that plaintiffs are "salaried," and since their salaries also exceed $ 250 per week, the short test applies.

 Administrative Exemption

 To be considered an administrative employee under the short test, the "primary duty" of the employee must consist of:

 
1. the performance of office or nonmanual work directly related to management policies or general business operations of the employer
 
AND
 
2. the exercise of discretion and independent judgment.

 29 C.F.R. §§ 541.2(e)(2), 541.214(a). In the ordinary case, "primary duty means the major part, or over 50 percent, of the employee's time" spent on administrative work. 29 C.F.R. §§ 541.103, 541.206(b). "Work which is directly and closely related to the performance of the work described in § 541.2 is considered exempt work." 29 C.F.R. § 541.208(a).

 According to the Administrator, the phrase "directly related to management policies or general business operations" describes "those types of activities relating to the administrative operations of a business as distinguished from 'production' * * *. In addition to describing the types of activities, the phrase limits the exemption to persons who perform work of substantial importance to the management or operation of the business of his employer * * *." 29 C.F.R. § 541.205(a). The interpretations state that administrative operations include the work of those white collar employees who are involved in planning, advising management, negotiating, and promoting sales. 29 C.F.R. § 541.205(b). "Employees whose work is 'directly related' to management policies or to general business operations include those whose work affects policy or whose responsibility it is to execute or carry it out." 29 C.F.R. § 541.205(c). The phrase "is not limited to persons who participate in the formulation of management policies or in the operation of the business as a whole." Id. Titles alone are of little or no assistance in determining an employee's exempt or nonexempt status. "Titles can be had cheaply and are of no determinative value." 29 C.F.R. § 541.201(b). It is therefore necessary to look closely at the duties performed.

 The interpretations also explain that "the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered." 29 C.F.R. § 541.207(a). Thus, for an employee to be administrative, he or she must have "the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance." 29 C.F.R. § 541.207(a). The term "discretion and independent judgment" applies to the kinds of decisions "normally made by persons who formulate or participate in the formulation of policy within their spheres of responsibility or who exercise authority within a wide range to commit their employer in substantial respects financially or otherwise." 29 C.F.R. § 541.207(d)(2). An employee may be exercising discretion and independent judgment even though the use of such judgment consists of recommendations rather than action, and even though the employee's decisions may be subject to review. 29 C.F.R. § 541.207(e)(1). what constitutes "matters of significance" is determined by the particular facts of each case. See 29 C.F.R. § 541.207(d)(1). However, the interpretations caution that the phrase "the exercise of discretion and independent judgment" should not be applied to "employees making decisions relating to matters of little or no consequence." 29 C.F.R. § 541.207(d)(2). In addition, discretion and independent judgment are distinct from "the use of skill in applying techniques, procedures, or specific standards." 29 C.F.R. § 541.207(b).

 Professional Exemption

 Employees may be covered by the professional exemption if they are either of the "learned" or "artistic" type. Dalheim v. KDFW-TV, 706 F. Supp. 493, 501 (N.D. Tex. 1988), aff'd, 918 F.2d 1220 (5th Cir. 1990). Under the short test, an employee is considered a professional of the "learned" type if his or her "primary duty":

 
1. consists of work requiring knowledge of an advanced type in a field of science or learning
 
AND
 
2. includes work requiring the consistent exercise of discretion and judgment.

 29 C.F.R. §§ 541.3(e), 541.315(a). Alternatively, an employee satisfies the short test for a professional of the "artistic" type if his or her "primary duty":

 
1. consists of the performance of work requiring invention, imagination, or talent in a recognized field of artistic endeavor.

 29 C.F.R. §§ 541.3(e), 541.315(a). As with the administrative exemption, primary duty generally means those activities comprising the majority of the employee's work. 29 C.F.R. § 541.304. In addition, activities that are "an essential part of and necessarily incident to the professional work" are considered exempt work. 29 C.F.R. § 541.307(a). *fn10"

 The knowledge required for work of the "learned type" is "distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes." 29 C.F.R. § 541.3(a)(1). According to the Administrator, knowledge of an advanced type "cannot be attained at the high school level." 29 C.F.R. § 541.302(b). The knowledge must be "in a field of science or learning," 29 C.F.R. § 541.302(c), and it "must be customarily acquired by a prolonged course of specialized intellectual instruction and study." 29 C.F.R. § 541.302(d). "The word 'customarily' implies that in the vast majority of cases the specific academic training is a prerequisite for entrance into the profession." 29 C.F.R. § 541.302(d).

 Some examples of fields that employ professionals of the "learned type" are law, medicine, nursing, accounting, engineering, architecture, teaching, and various types of physical, chemical, and biological sciences. "The typical symbol of the professional training and the best prima facie evidence of its possession is, of course, the appropriate academic degree, and in these professions an advanced academic degree is a standard (if not universal) prerequisite." 29 C.F.R. § 541.302(e)(1). The interpretations specifically state that the learned professional exemption "does not include the members of such quasi-professions as journalism in which the bulk of the employees have acquired their skill by experience rather than by any formal specialized training." 29 C.F.R. § 541.302(d).

 
Work of this type is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee.

 29 C.F.R. § 541.303(a).

 Recognized fields of artistic endeavor include "music, writing, the theater, and the plastic and graphic arts." 29 C.F.R. § 541.303(b). In the field of writing, "the requirement is met by essayists or novelists or scenario writers who choose their own subjects and hand in a finished piece of work to their employers." 29 C.F.R. § 541.303(c)(2). For instance, the requirement would generally be met by those holding the more responsible writing positions in advertising agencies. 29 C.F.R. § 541.303(c)(2). However, as with the administrative exemption, the exemption of any professional depends upon that individual's "duties and other qualifications," rather than title. 29 C.F.R. § 541.308(a).

 Under the section concerning "artistic professions," the interpretations address the applicability of the "professional" exemption to journalists in general terms, and the applicability to newspaper writers and reporters in more detail.

 
The field of journalism * * * employs many exempt as well as many nonexempt employees under the same or similar job titles. Newspaper writers and reporters are the principal categories of employment in which this is found.
 
(1) Newspaper writers, with possible rare exceptions in certain highly technical fields, do not meet the requirements * * * for exemption as professional employees of the "learned" type. Exemption for newspaper writers as professional employees is normally available only under the provisions for professional employees of the "artistic" type. Newspaper writing of the exempt type must, therefore, be "predominantly original and creative in character." Only writing which is analytical, interpretative or highly individualized is considered to be creative in nature. * * * Newspaper writers commonly performing work which is original and creative * * * are editorial writers, columnists, critics, and "top-flight" writers of analytical and interpretative articles.
 
(2) The reporting of news, the rewriting of stories received from various sources, or the routine editorial work of a newspaper is not predominantly original and creative in character * * * and must be considered as nonexempt work. Thus, a reporter or news writer ordinarily collects facts about news events by investigation, interview, or personal observation and writes stories reporting these events for publication, or submits the facts to a rewrite man or other editorial employees for story preparation. Such work is nonexempt work. The leg man, the reporter covering a police beat, the reporter sent out under specific instructions to cover a murder, fire, accident, ship arrival, convention, sport event, etc., are normally performing duties which are not professional in nature within the meaning of the act * * *.

 29 C.F.R. § 541.303(f).

 Overall, the interpretations take the view that "the majority of reporters do work which depends primarily on intelligence, diligence, and accuracy" and that it is only "the minority whose work depends primarily on 'invention, imaging [sic], or talent.'" 29 C.F.R. § 541.303(d).

 "Tacking" of Exempt Work

 The Administrator has construed the statute to permit the "'tacking' of exempt work under one section of the regulations * * * to exempt work under another section." 29 C.F.R. § 541.600. Thus, even if the primary duty of an employee is not administrative or professional, an employee who spends a majority of his or her time performing a combination of administrative and professional work is exempt from statutory protection.

 Burden of Proof

 As the employer, NBC bears the burden of proving that its employees fall within an exempted category. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974); Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 206, 15 L. Ed. 2d 694, 86 S. Ct. 737 (1966); Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir. 1991), cert. denied, 121 L. Ed. 2d 222, 113 S. Ct. 298 (1992). The employer must also establish by clear and affirmative evidence that all of the requirements of the exemption are met. Walling v. Gen. Indus. Co., 330 U.S. 545, 547-48, 91 L. Ed. 1088, 67 S. Ct. 883 (1947); Donovan v. United Video, Inc., 725 F.2d 577, 581 (10th Cir. 1984). The exemptions are to be narrowly construed against the employer seeking to assert them and their application is to be limited to those employees plainly and unmistakably within their terms and spirit. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 4 L. Ed. 2d 393, 80 S. Ct. 453 (1960). Where the record is unclear as to some exemption requirement, the employer will not be held to have satisfied its burden. Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 900 (3d Cir. 1991), cert. denied, 117 L. Ed. 2d 617, 112 S. Ct. 1473 (1992).

 Case Law Pertaining to Journalism

 Print Journalism

 The contention that reporters and editors are "learned" professionals was rejected in Sun Publishing Co. v. Walling, 140 F.2d 445 (6th Cir.), cert. denied, 322 U.S. 728, 88 L. Ed. 1564, 64 S. Ct. 946 (1944). The plaintiffs in Sun Publishing were writers and reporters who gathered, composed and edited news stories. They brought suit against their employer, a newspaper publisher, for withholding overtime compensation. The court stated that, as a matter of evidence and common knowledge, few newspaper employees were graduates of specialized schools of journalism and that "there are editors of long experience and trained judgment who * * * believe that the only practical school of journalism is the newspaper office." Id. at 449. The court concluded that the employees' work was not of a nature usually prepared for by a long course of specialized training and held that they were therefore not exempt from coverage under the FLSA. Id. The court did not address the employees' qualifications as "artistic" professionals.

 Adams v. St. Johns River Shipbuilding Co., 69 F. Supp. 989 (S.D. Fla.), rev'd on other grounds, 164 F.2d 1012 (5th Cir. 1947), concerned whether an editor qualified under the administrative exemption. The plaintiff was the editor of an illustrated periodical, issued by his employer, which carried stories about the company's operations and personnel. The editor "conceived and executed the general make-up of the publication." Id. at 992. The court found that although the editor submitted the magazine to a superior for approval before it was published, he performed tasks using discretion and independent judgment that directly related to management policies or general business operations of the company, and was therefore an administrative employee. Id.

 A television critic and columnist for the Washington Times was found to be exempt from the overtime provision of the FLSA in Lewis v. News World Communications, No. 85-3426, 1987 U.S. Dist. LEXIS 13964 (D.D.C. Oct. 20, 1987). The plaintiff's major assignments included preparing a daily television column, preparing lengthy critical previews of television programs and preparing weekly media columns, all based on his own evaluation, conclusions and opinions. In addition, the plaintiff "was given full discretion over the subjects and tone of his columns." Id. at *7 The court decided that Lewis qualified as a professional employee because he primarily performed exempt duties involving "individualized analyses, interpretations, and criticisms--all the product of his creativity, initiative, imagination, talent and flair." Id. at *15. The court noted that 29 C.F.R. § 541.303(f)(1) expressly exempts newspaper critics and columnists such as Lewis. Id.

  The more recent decision in Sherwood v. The Washington Post, 677 F. Supp. 9 (D.D.C. 1988), rev'd, 276 U.S. App. D.C. 404, 871 F.2d 1144 (D.C. Cir. 1989), concerned whether reporters and editors for The Washington Post were entitled to overtime under the statute.

 In Sherwood, the defendant maintained that the plaintiffs were exempt as "professionals" under § 213(a)(1). Judge Gerhard A. Gesell granted the defendant's motion for summary judgment with respect to thirteen plaintiffs. The court first observed that the FLSA was enacted in response to President Roosevelt's call for legislation "to protect those receiving the bare necessities of life whose health was injured by long hours of toil. He spoke for those in the lowest income brackets, the underpaid and destitute receiving sub-standard pay. These are still the basic objects of the statute." Id. at 13. The court noted that the Department of Labor interpretations *fn11" were thirty years old and were not "categorical and indeed, given the wide variety of journalism jobs and their ever-changing characteristics, [could not] be decisive in the context of present day journalism." Id. at 14. Judge Gesell found the regulations and interpretations "useful but not controlling," and determined that "in each instance a court must fashion an interpretation of the FLSA which comports with congressional purpose, guided primarily by the general regulations, the overall direction taken in individual rulings and by the special facts of each situation." Id. at 14 (citations omitted). The court found that the plaintiffs

 
produce original and creative writing of high quality within the meaning of the regulations; they have far more than general intelligence; they are thoroughly trained before employment; their performance as writers is individual, interpretative and analytical both in the writing itself and in the process by which the writing must be prepared; and their performance is measured and paid accordingly. A special talent is necessary to succeed.

 Id. The court therefore held that the plaintiffs were exempt from the overtime provisions of the FLSA as artistic professionals. Id. at 14-15.

 On plaintiff Sherwood's appeal, *fn12" the Court of Appeals reversed, based upon its finding that "the District Court was faced with genuine issues of material fact, inappropriate for disposal on summary judgment." Sherwood v. Washington Post, 276 U.S. App. D.C. 404, 871 F.2d 1144, 1145 (D.C. Cir. 1989). The Court of Appeals held that under the applicable interpretations, "a person's job is 'professional' by virtue of being original or creative only when the original and creative aspects constitute the primary or predominant functions of the job." 871 F.2d at 1147 (emphasis in original) (footnote omitted). The court found that Judge Gesell impermissibly made "critical findings with respect to material facts," observing, for example, that "the parties sharply disagreed over whether Sherwood's reporting is original or creative and whether it is predominantly so." Id. at 1147. The court held that "drawing all evidentiary inferences in favor of the appellant, as required, it is certainly debatable whether Sherwood's work is primarily original and creative." Id. at 1148. The court remanded for a trial, noting that it offered no view on the merits of the case. *fn13" Id. at 1145, 1148 n.5.

 Broadcast Journalism

 In Mitchell v. Kickapoo Prairie Broadcasting Co., 182 F. Supp. 578 (W.D. Mo. 1960), aff'd in part and rev'd in part on other grounds, 288 F.2d 778 (8th Cir. 1961), a news editor for a radio station was found to be employed in a bona fide professional capacity. The court first noted generally that "news editors, reporters or rewrite men, as those terms are accepted and understood in the newspaper field, and as those occupations are defined by the Administrator are clearly not exempt occupations." Id. at 582. However, the court ultimately found that the duties of the plaintiff went "clearly beyond the scope of the limitations imposed by the statute and by the regulations." Id. Although the plaintiff had the title of News Editor, the court pointed out that he was actually in charge of the news department at the station and that "he applied his special knowledge or talents with discretion and judgment." Id.

 In Dalheim v. KDFW-TV, 706 F. Supp. 493 (N.D. Tex. 1988), aff'd, 918 F.2d 1220 (5th Cir. 1990), *fn14" the plaintiffs were present and former general assignment reporters, producers, directors, and assignment editors employed by KDFW-TV, a network affiliate television station. The plaintiffs contended that they were required to work more than forty hours per week without overtime pay. The defendant asserted that the plaintiffs were employees working in executive, administrative or professional capacities, and therefore exempt from coverage under § 213(a)(1). Following a bench trial, the court found that KDFW had failed to prove that the plaintiffs were exempt from the FLSA provisions. Id.

 The court in Dalheim recognized that the determination of whether an employee is protected by the statute is a factual question, and that prior decisions were frequently of limited value because two employees with the same job titles may be either exempt or nonexempt employees, depending on their job functions. Id. at 495, 504. The court also observed that while the interpretative regulations may be used for guidance and are entitled to considerable weight,

 
the regulations relevant to the present case are over 30 years old. Although the age of regulations is not per se an infirmity, it is arguable that the considerable technical advances that have taken place in the television industry and in broadcast journalism since 1958 have affected the weight to be given these interpretative guides.

 Id. at 496.

 The court began by setting forth in detail the plaintiffs' duties at KDFW. Id. at 496-501. The court then turned to KDFW's contention that the reporter, producer and director plaintiffs were exempt as "learned" or "artistic" professionals. Id. at 501-06. The court found that despite the emergence of many journalism schools and degrees, the plaintiffs were not "learned" professionals, because the record showed that "broadcast journalism does not customarily require a knowledge of a field of science or learning." Id. at 502. Furthermore, the court noted that KDFW itself did not require its employees to possess a college degree. The court found that the plaintiffs followed a path of starting in small markets and advancing to larger ones, and that their performance was enhanced by work experience which was considered "more akin to 'an apprenticeship and * * * training' rather than 'intellectual instruction and study.'" Id.

 The court acknowledged that "general assignment reporters can be artistic professionals because significant technological advances in how broadcast news is gathered and presented to the viewer have required that reporters produce work that is original and creative in character, the result of which depends primarily on the invention, imagination, or talent of the employee." Id. at 503 (emphasis in original). The court found, however, that the defendant had failed to "prove by a preponderance of the evidence that the work of its plaintiff-reporters is so 'primarily' inventive or imaginative, or routinely original and creative, that the court can find they are artistic professionals." Id. at 504. Relying for guidance on § 541.303 of the interpretations, the court concluded that "like print journalists, KDFW reporters primarily use intelligence, diligence, and accuracy to report facts." Id. at 505. The court noted that the reporters were "told which stories to cover and * * * informed of the focus or angle of the story before they cover it. * * * They use essentially a standard format of pictures and sound to cover most stories." Id. Thus, the reporters did not depend "principally upon creativity, invention, or imagination." Id.

 The court similarly found that the directors were not artistic professionals because they did not primarily rely on invention, imagination or talent in performing their job. "Many of their decisions are obvious because station management has prescribed the 'look' of the newscast in much detail. * * * Directors operate principally within accepted guidelines and do not function primarily upon the basis of invention, imagination or talent." Id.

 Nor did producers, directors and assignment editors qualify as administrative employees. *fn15" The court found that the producers did not "perform, as their primary duty, work that is directly related to management policies or general business operations." Id. at 507. Their work was "not related to the 'administrative' aspects of the business and * * * not of importance to the business as a whole to a 'substantial degree.'" Id. The court found that the "the nature of the [employee's] work, not its ultimate consequences[,]" is the focal point of the regulations. Id. at 508 (emphasis in original). Thus, even though the producers' work could have a substantial impact on the broadcast, the work itself was not "directly related to management policies or general business operations." Id. (quoting 29 C.F.R. § 205(c)(2)). The directors were found not to be administrative employees because their work also failed to meet the "'directly related' element of the administrative employee exemption." Id. In addition, the directors were not exempt because their work did not "require the exercise of discretion and independent judgment." Id.

  Finally, the court found that KDFW's violation of the FLSA was not "willful." The court noted that "to be a 'willful' violation under the FLSA, the employer must have either known or shown reckless disregard for whether its conduct was prohibited by the FLSA." Id. at 510 (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 100 L. Ed. 2d 115, 108 S. Ct. 1677 (1988)). The court found that the case presented questions of first impression regarding the exemptions of the various broadcast journalism positions, and acknowledged that "the determinations whether reporters are artistic professionals and whether producers are administrative professionals are close ones." Id. at 511.

  The Fifth Circuit affirmed, finding that the district court properly applied the statute and regulations, and that the record supported the district court's conclusion that the employees in Dalheim were not exempt as executive, administrative or professional employees. Dalheim v. KDFW-TV, 918 F.2d 1220, 1223 (5th Cir. 1990). The court emphasized that the inquiry into exempt status under § 213(a)(1) "remains intensely factbound and case specific," Id. at 1226, and observed that the trial judge "painstakingly catalogued the tasks performed by each type of employee, and related how each task contributes to producing a KDFW newscast." Id. at 1227-28.

  With respect to general-assignment reporters, the court specifically rejected KDFW's contention that the district court gave undue weight to interpretation § 541.303(e) and (f), "thus blinding itself to the realities of modern broadcast journalism." Id. at 1228. It held:

  Id. The Court of Appeals also rejected challenges to the district court's construction of the term "primary duty," its findings regarding the administrative exemption, and its alleged failure to "tack" exemptions under § 541.600. Id. at 1227-28, 1229-31, 1232.

  THE EVIDENCE AT TRIAL

  Overview

  The NBC News Division employs approximately 1000 people worldwide and uses hundreds of freelancers to gather and produce news stories. It maintains approximately twenty-two domestic and foreign news bureaus, and its news programs are broadcast daily over 200 NBC television affiliates throughout the United States and certain foreign countries. The News Division produces regularly scheduled news programs such as Nightly News, Weekend Nightly News, the Today show, Sunrise and numerous news specials, documentaries and on-the-spot coverage of special events. Nightly News, and its weekend version, Weekend Nightly News, are the best known programs produced by the NBC News Division. Nightly News has the highest viewing of any NBC news program, reaching nearly fifteen million people daily. It also generates the largest amount of revenue for the Division, and is critical to each of NBC's television affiliates, all of which carry the program on a daily basis. In most of the country, the program airs at either 6:30 or 7:00 p.m., when it competes head-to-head with the comparable daily news programs of the other two major networks, as well as other local and cable television programs.

  Plaintiff Freeman is a newswriter for Nightly News, which is anchored by Tom Brokaw, who also serves as the program's managing editor. *fn16" Freeman is a member of a core production/editorial group consisting of the executive producer *fn17" William Wheatley; senior producer Cheryl Gould; foreign and domestic producers Mark Kusnetz and Jack Chesnutt, respectively; news editor, Sandor Polster; foreign and domestic newswriters, Edward Deitch and Freeman, respectively; and Tom Brokaw, all of whom work closely together in the NBC newsroom. In addition, Nightly News employs dozens of on-air reporters or "correspondents," field and segment producers, researchers, graphic artists, satellite coordinators, tape producers, and a large ...


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