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New overtime regulations--are newsletter reporters and editors really exempt?

Are newsletter reporters and editors exempt from overtime pay requirements? This question came up occasionally during my tenure with the newsletter association--and it's a relevant question once again, now that the U.S. Department of Labor has rewritten overtime regulations.

Publishers, to a person, have tended to assume, "Of course they are exempt, they're professionals."

My answer was usually, "Probably, but it's not entirely clear." If you have ever read the regs, it appears they could be interpreted so that no one who doesn't sign company checks (which includes most reporters) is exempt from overtime pay.

You could run into a hard-nosed examiner who could hold that reporters are not exempt, especially in cases that involve a lot of 10:00 p.m. deadlines or travel. (Covering conventions tends to be a 12-hour-day job, and "He got a free trip to Las Vegas" or "We make it up with comp time" may not be satisfactory answers.

Tip of the hat in retrospect to an attorney I worked with once who finally convinced our boss that not only would the "trip to Las Vegas" excuse not fly, but "promoting" secretaries to "administrative assistant" and paying them a bit more wasn't a sure answer either.

Now Uncle Sam has rewritten the overtime regulations. In the wonderful ways of government, the new regs make this question with regard to newsletter reporters both simpler and more complex at the same time.

Simpler

If any reporter makes less than $23,660, he or she is not exempt from overtime pay requirements regardless of any other factor.

At the other end of the scale, any reporter or editor earning more than $100,000 is exempt (almost) automatically. Almost because if any editor who earns more than $100K, but only writes and does not supervise others or perform "executive functions," might not be exempt.

More complex

That leaves a rather large grey area in the middle--for those earning

between $23,660 and $100,000, which I venture to say includes the majority of newsletter reporters and editors.

According to New York attorney Blair Soyster, quoted in NEPA's Hotline, reporters and editors whose work requires "invention, imagination, originality and talent" may be exempt from overtime requirements, while those whose responsibilities are limited to requiring "intelligence, diligence and accuracy" may not be exempt.

Let's repeat that:

* Exempt: Those whose work requires "invention, imagination, originality and talent."

* Not exempt: Journalists whose jobs are straight news reporting, rewriting, collecting and organizing public information or doing other tasks that "only" require "intelligence, diligence and accuracy--plus those reporters whose work is subject to substantial control.

Who in the hell is going to make that decision and how? "Diligence and accuracy" are always important in journalism, but certainly "orginality and talent" are also valuable.

I read this to a veteran publisher who, when he stopped laughing, asked, "Is that the Jason Blair exemption? Making up stuff from thin air certainly requires talent and originality."

Can you picture some beleaguered wage-and-hour examiner going through a stack of Widget Industry Fortnightly and marking each article as exhibiting "diligence and accuracy" or others showing "imagination and talent"--and then coming to a decision?

The new regulations go into effect August 18, 2004, but it's still probably safe for newsletter publishers to continue to assume their editorial staff is exempt from overtime pay requirements, but not to presume it's "automatic."

Gluttons for punishment can read the new regulations the Department of Labor's website, www.dol.gov/fairpay.
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Title Annotation:Management
Author:Goss, Fred
Publication:The Newsletter on Newsletters
Date:Apr 30, 2004
Words:579
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