The FLSA’s professional exemption has two subcategories: the “learned professional” (those who perform work requiring the use of advanced knowledge customarily acquired through prolonged academic instruction), and its sibling, the “creative professional” (those engaged in the “performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor").See 29 C.F.R. § 541.302(a).This week, the federal Court of Appeals for the Ninth Circuit reviewed one of the few decisions analyzing the applicability of this exemption, and affirmed the lower court’s ruling that the defendant newspaper’s reporters did not meet its requirements. Wang v. Chinese Daily News, 2010 U.S. App. LEXIS 19929 (9th Cir. 2010)
The Ninth Circuit focused on the DOL’s regulation addressing the potential applicability of the exemption to journalists.That regulation distinguishes between work requiring “invention, imagination, originality or talent” from work which depends primarily on “intelligence, diligence and accuracy.”29 C.F.R. § 541.302(d).In affirming, the Circuit Court concluded that the materials submitted on summary judgment made clear that newspaper’s articles did not have the sophistication of the national-level papers, where there might be a “small minority of journalists who are exempt.” Moreover, the Court held the intense pace at which newspaper reporters worked precluded them from engaging in sophisticated analysis. Their primary duties did not involve "conducting investigative interviews; analyzing or interpreting public events; writing editorials, opinion columns or other commentary," even if they engaged in these activities some of the time, the Court held. The Court concluded that characterizing journalists as exempt would therefore be “inconsistent with the Department of Labor’s intent that ’the majority of journalists . . . are not likely to be exempt,’ and with the requirement that FLSA exemptions be construed narrowly.” Chinese Daily News, 2010 U.S. App. LEXIS 19929 at * 13-15 (internal citations omitted).
When the district court granted summary judgment to the plaintiffs it noted that as of that date there was only one case where a court found a newspaper reporter to be exempt.Lynne Wang v. Chinese Daily News, Inc., 435 F. Supp. 2d 1042, 1053 (C.D. Cal. 2006) citingSherwood v. Washington Post, 871 F. Supp. 1471 (D.D.C. 1994)(exempting Washington Post bureau chief assigned to cover Mayor Marion Barry and later the vice presidential campaign).
The Ninth Circuit’s decision, along with two earlier Circuit opinions it cites, is a cautionary tale regarding the narrow scope of the creative professional exemption, particularly as applied to journalists.Employers, especially those in the newspaper, magazine and related industries, must ensure that any individual treated as an exempt creative professional utilizes the requisite “invention, imagination, originality or talent” in performing his/her job duties.New media content providers must also be aware that – technological differences notwithstanding – authors and producers of Internet content will be analyzed under the same framework.