Reich v. Newspapers of New England, Inc.
| Decision Date | 16 September 1994 |
| Docket Number | Nos. 94-1032,94-1033,s. 94-1032 |
| Citation | 44 F.3d 1060 |
| Parties | , 129 Lab.Cas. P 33,198, 131 Lab.Cas. P 33,314, 23 Media L. Rep. 1257, 2 Wage & Hour Cas.2d (BNA) 897 Robert B. REICH, Secretary of Labor, U.S. Department of Labor, Plaintiff-Appellant, v. NEWSPAPERS OF NEW ENGLAND, INC. D/B/A/ The Concord Monitor and George Wilson, Defendants-Appellees. SECRETARY UNITED STATES DEPARTMENT OF LABOR, Plaintiff-Appellee, v. NEWSPAPERS OF NEW ENGLAND, INC. D/B/A/ The Concord Monitor and George Wilson, Defendants-Appellants. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Edward E. Shumaker III, with whom Robert J. Finn and Gallagher, Callahan & Gartrell, P.A., Concord, NH, were on brief, for Newspapers of New England, Inc. d/b/a Concord Monitor, et al.
John G. Kester, Thomas G. Hentoff and Williams & Connolly, Washington, DC, on brief, for Newspaper Ass'n of America, Nat. Newspaper Ass'n, American Soc. of Newspaper Editors, and Nat. Ass'n of Broadcasters, amici curiae.
Anne Payne Fugett, U.S. Dept. of Labor, with whom Thomas S. Williamson, Jr., Sol. of Labor, Monica Gallagher, Associate Sol., William J. Stone, Acting Deputy Associate Sol., and Albert Ross, Regional Sol., U.S. Dept. of Labor, Washington, DC, were on brief, for Secretary of Labor.
David S. Barr, Michael J. Gan and Barr, Peer & Camens, Washington, DC, on brief, for Newspaper Guild, AFL-CIO, CLC, amicus curiae.
Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and KEETON, * District Judge.
These cross appeals require us to decide whether the reporters, editors, and photographers employed by a small community newspaper are exempt from the overtime and recordkeeping provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. Sec. 201 et seq. ("FLSA" or the "Act"). The case revolves around whether the employees at issue are exempt under the "professional employee" exemption of Sec. 13(a)(1) of the Act.
This case arose when the United States Secretary of Labor ("the Secretary") brought this action against Newspapers of New England, Inc. d/b/a The Concord Monitor ("The Monitor "), and George Wilson, the newspaper's publisher, claiming that The Monitor had willfully violated the overtime and records requirements of the FLSA with respect to the wages it had paid its reporters, editors, and photographers. The Monitor 's primary defense was that the FLSA did not cover its actions because the employees at issue were exempt professionals. The Monitor also maintained that any FLSA violations it may have committed were not willful.
The case was tried to the bench. In an opinion issued seven years after the trial concluded, the court found that The Monitor 's newsroom employees were not entitled to the professional exemption from the Act's overtime requirements and awarded back wages and liquidated damages to twelve employees. The court also found, however, that the violations had not been committed willfully and consequently limited the damages to the two-year period before the filing of the suit rather than the three-year period applicable to willful violations. The court refused to award damages for violations occurring after the close of the DOL's compliance investigation, and it denied the Secretary's request for a permanent injunction against future violations. These cross appeals followed.
Although the district court was inexplicably slow in issuing its less-than-meticulous opinion, we affirm for the reasons that follow.
The Monitor is an award-winning small-city newspaper with a daily circulation in excess of 4,000 copies. It is published in Concord, New Hampshire, by the defendants, George Wilson and Newspapers of New England, Inc. In 1974, the Department of Labor ("DOL") investigated the newspaper under the FLSA and warned it of possible overtime and recordkeeping violations. Although the DOL did not press charges at that time, it informed the paper of the relevant FLSA requirements.
In late 1979 and early 1980, the DOL again investigated the pay practices in The Monitor 's newsroom. This investigation convinced the DOL that certain newsroom employees were not being paid for all their overtime hours. Consequently, the DOL commenced this litigation. The newsroom employees at issue in the Secretary's action were reporters, low-level editors, and photographers.
The evidence at trial consisted of the testimony, either live or through deposition, of fourteen newsroom employees and several experts in the field of journalism.
The Monitor 's editor-in-chief, Mike Pride, testified that he requires a college degree with an emphasis in writing to work as a staff writer or editor. Nevertheless, he conceded that a journalism degree was not a prerequisite for employment at The Monitor.
In fact, Pride and at least one-half of the reporters who testified had degrees in subjects other than journalism. 1 For most of The Monitor 's reportorial staff, this employment was their first in the field of journalism
When hired, The Monitor 's reporters were assigned to tasks ranging from writing features to covering legislative, municipal, and town governments and agencies. Some of their work was of a routine nature, such as compiling lists of the titles and times of local showings of motion pictures. The reporters testified that they worked essentially unsupervised, had authority and discretion over what they did and wrote, and decided how their assignments would be executed. Nevertheless, most of them testified that their time was spent on "general assignment" work and their writing was mainly focused on "hard news."
For example, staff writer Margaret Burton testified that during her first year, as an education reporter, she wrote about education issues and covered the State Department of Education as well as the meetings of the local school boards. When she was later assigned to cover court proceedings, she reported "who was charged, what the charges were and who the witnesses were and what they said."
Sharon Goss testified that she wrote "feature stories" when she first started at the paper. She described these stories as having "more of a fill the page kind of mentality ... than go out and do something really creative." Ms. Goss testified that when she later became a regional reporter, she covered government and town planning meetings, visited offices of selectmen, called people on the phone about pertinent issues, and read through courthouse documents concerning lawsuits filed against towns.
Randall Keith testified that during his first year at The Monitor he spent approximately 90 percent of his time covering city hall and the remainder covering police and other general assignment stories. Later, he split his time between business writing and covering the police beat. He testified that none of his writing was highly complex and that it could have been done by anyone with general training and ability.
Lila Locksley testified that her main duties were reading wire stories for grammatical and factual errors, writing headlines, and making improvements so that the stories were shorter or more readable. She also performed layout work. She testified that the layout work consisted of editing the stories, writing headlines, sizing photographs, and writing the captions that appeared beneath the photographs.
Nancy Druelinger offered similar testimony, stating that most of her time was spent writing headlines, reading over and rewriting wire stories, and laying out the pages. She also stated that it was her responsibility to decide which stories would appear in the paper. She testified that she thought her duties as an editor required imagination, creativity, and talent. She stated that decisions with regard to legal issues (such as whether a story was potentially libelous), taste, and newsworthiness were all within her discretion.
Photographer Tom Sobolik testified that 70 percent of his work was assigned and that he had no input as to which photos would be used in the newspaper. While Mr. Sobolik acknowledged that there are creative aspects to photojournalism, he stated that "a large proportion of it is pretty run-of-the-mill and pretty standardized."
Throughout the relevant period, Ken Williams spent most of his time shooting sports, exteriors and interiors of buildings, and politicians. Mr. Williams testified that more than 50 percent of his time was spent
in the developing of photos in the darkroom. In Mr. William's opinion, "there's very little news photography which is art" because "a news photographer tries to photograph reality, as it happens, without embellishment, without taking sides."
The Secretary offered the testimony of Ben H. Bagdikian, Dean of the Graduate School of Journalism at the University of California at Berkeley ("Dean Bagdikian"). In Dean Bagdikian's opinion, the majority of journalists do not meet the qualifications for professional exemption from the overtime provisions of the FLSA. He distinguished journalism from the traditional professions, such as law and medicine, in which there is an accumulated body of knowledge and a canon which every practitioner is required to know. He stated that there is no body of scholarly work which a journalist is required to know before he may practice. Rather, a journalist must be a skilled and accurate observer, have good judgment, and be able to write clearly.
Dean Bagdikian also testified that journalism is not a field in which the employee's work product depends primarily on invention, imagination, or talent. In his view, the vast majority of newspaper reporting centers around clear, disciplined observation of public events and people. He further testified that although there have been significant and substantial changes in the field of journalism, these changes do not warrant changing the definition...
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