Dalheim v. KDFW-TV

• Decision Date: 13 December 1990
• Docket Number: No. 89-1544,KDFW-T,D,89-1544
• Parties: 30 Wage & Hour Cas. (BN 113, 59 USLW 2398, 117 Lab.Cas. P 35,438, 18 Media L. Rep. 1657 Edward W. DALHEIM, et al., Plaintiffs-Appellees, v.efendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1220

918 F.2d 1220

30 Wage & Hour Cas. (BN 113, 59 USLW 2398,

117 Lab.Cas. P 35,438, 18 Media L. Rep. 1657

Edward W. DALHEIM, et al., Plaintiffs-Appellees, v. KDFW-TV, Defendant-Appellant.

No. 89-1544.

United States Court of Appeals, Fifth Circuit.

Dec. 13, 1990.

David M. Ellis, Michael P. Maslanka, William L. Keller, Clark, West, Keller, Butler & Ellis, Dallas, Tex., for defendant-appellant.

Yona Rozen, Gillespie and Rozen, Dallas, Tex., for plaintiffs-appellees.

Betty Southard Murphy, David A. Grant, Baker & Hostetler, Washington, D.C., for amicus--National Ass'n of Broadcasters, et al.

Stanley M. Berman, Cohen, Weiss & Simon, New York City, for amicus curiae--American Federation of Television & Radio Artists.

David S. Barr, Barr, Peer & Cohen, Washington, D.C., for amicus curiae--The Newspaper Guild.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, GARWOOD and HIGGINBOTHAM, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A television station appeals a judgment of the district court holding it liable for violations of the Fair Labor Standards Act (FLSA) ¹ by failing to compensate its general-assignment reporters, news producers, directors, and assignment editors for overtime work. Because we find that the district court properly applied the applicable statute and regulations, and because we find that the record supports the district court's conclusion that the employees involved in this case are not exempt under Sec. 13(a)(1) of the FLSA as bona fide executive, administrative, or professional employees, we affirm.

I

A. Facts and Procedural History

The district court's extensive findings of fact are set out in the first of its published opinions in this case. ² We therefore merely summarize them.

Plaintiffs are nineteen present and former general-assignment reporters, producers, directors, and assignment editors employed in the news and programming departments of television station KDFW-TV (KDFW). As its call letters imply, KDFW serves the Dallas-Fort Worth area which, with approximately 3.5 million viewers, is the eighth largest television market in the nation. The news and programming departments are responsible for producing KDFW's local news broadcasts and its public affairs programming.

KDFW's general-assignment reporters usually receive a new coverage assignment each day. The assignment manager or an assignment editor tells the reporter the story to be covered, what she is expected to "shoot," and the intended angle or focus of the story. After the reporter interviews the persons that she or another KDFW employee has arranged to interview, she obtains pertinent video footage, and then writes and records the text of the story, subject to review by the producer. Some reporters help assemble the video and text narration; others rely on a video editor to put the final package together. General-assignment reporters are only infrequently assigned to do a series of reports focusing on a single topic or related topics. Successful reporters usually have a pleasant physical appearance and a strong and appealing voice, and are able to present themselves as credible and knowledgeable.

Producers are responsible for determining the content of the ten-to-twelve minute news portion of KDFW's thirty-minute newscast. They participate in meetings to decide which stories and story angles will be covered; they also decide the amount of time to be given a particular story, the sequence in which stories will be aired, and when to take commercial breaks. Producers have the authority to revise reporters' stories. All of the producers' actions are subject to approval by the executive producer.

Directors review the script for the newscast in order to prepare technical instructions for "calling" the show. The director decides which camera to use and on which machine to run videotaped segments or preproduction graphics. During the broadcast, the director cues the various technical personnel, telling them precisely when to perform their assigned tasks. The overall appearance of KDFW's newscasts, however, is prescribed by station management. The director therefore has no discretion concerning lighting, camera-shot blocking, closing-shot style, or the sequence of opening and closing graphics. KDFW's directors also direct some public affairs programming, which have no prescribed format but involve only simple camera work and a basic set. In addition, KDFW's directors screen commercials to be aired by the station to ensure that they meet the standards set by KDFW's parent, Times Mirror Corporation.

Assignment editors are primarily responsible for pairing reporters with both photographers and videotape editors. They also monitor the wire services, police and fire department scanners, newspapers, and press releases for story ideas that conform to KDFW's general guidelines. Assignment editors have no authority to decide the stories to be covered, but they may reassign reporters if they learn of a story requiring immediate action. Assignment editors operate under the supervision of the assignment manager.

Plaintiffs brought this suit in May, 1985, alleging that KDFW's reporters, producers, directors, and assignment editors were required to work more than forty hours per week without overtime pay, in willful violation of Sec. 7 of the FLSA, ³ and seeking to recover back wages from May, 1982 to the present. After an eight-day bench trial, the district court concluded that none of the plaintiffs was exempt from Sec. 7 as a bona fide executive, administrative, or professional employee under Sec. 13(a)(1) ⁴ and that KDFW had violated the FLSA by failing to pay overtime. ⁵ The court further concluded, however, that KDFW's violation was not willful, and that KDFW therefore was not liable for damages outside the FLSA's two-year statute of limitations for nonwillful violations. ⁶

B. The FLSA and the Sec. 13(a)(1) Exemptions

Section 7 of the FLSA requires employers to pay overtime to employees who work more than forty hours per week. Section 13(a)(1) exempts from the maximum hour provision employees occupying "bona fide executive, administrative, or professional" positions. That same section empowers the Secretary of Labor to define by regulation the terms "executive," "administrative," and "professional." She has done so at 29 C.F.R. Sec. 541.0 et seq., setting out "long" tests for employees earning more than $155 per week but less than $250 per week, which include specific criteria, and "short" tests, described in less detail, for employees earning more than $250 per week. In addition, the Secretary has issued interpretations of those regulations, which are codified at 29 C.F.R. Sec. 541.100 et seq. The Sec. 13(a)(1) exemptions are "construed narrowly against the employer seeking to assert them," ⁷ and the employer bears the burden of proving that employees are exempt. ⁸

The short test for the executive exemption requires that an employee's "primary duty" consist of the "management of the enterprise" in which she is employed "or a customarily recognized subdivision thereof." In addition, the executive employee's work must include "the customary and regular direction of the work" of two or more employees. ⁹ The regulations define an exempt administrative employee as one whose "primary duty" consists of "office or nonmanual work directly related to management policies or general business operations" that "includes work requiring the exercise of discretion and independent judgment." ¹⁰ The exemption for creative professionals requires that the employee's "primary duty" consist of work that is "original and creative in character in a recognized field of artistic endeavor," the result of which depends "primarily on the invention, imagination, or talent of the employee." ¹¹

KDFW challenges the holding of the district court on four distinct grounds, claiming that the district court (1) erroneously construed the term "primary duty" to mean duties occupying more than half of an employee's time; (2) erroneously concluded that reporters' work is not "original and creative" as those terms are used in the regulations; (3) misconstrued the requirement that administrative work be "directly related to management policies and general business operations," in that it (a) erroneously applied the concept of "production," as that term is used in the Secretary's interpretations, to the work of white-collar employees like producers, directors, and assignment editors, and (b) erroneously concluded that the work of producers, directors, and assignment editors should not be deemed "directly related" to business operations because they "carr[y] out major assignments in conducting the operations of the business," within the meaning of the interpretations; and (4) erroneously failed to "tack" exemptions for producers, directors, and assignment editors as provided for in the regulations. ¹²

II

KDFW contends that each of the errors it asserts on appeal is a legal error, requiring de novo review by this court. Plaintiffs, on the other hand, assert that KDFW has challenged only the district court's findings of fact and the inferences it drew therefrom, and that this court should therefore reverse only if the district court's findings are clearly erroneous.

The proper standard for appellate review of a district court's determination whether a given person is covered by the FLSA--that is, whether the person is, first, an "employee" as defined in Sec. 3(e) of the Act, and if so, whether that person is "exempt" under Sec. 13--has perplexed the courts and parties alike since the FLSA was passed in 1938. This confusion stems in part from the inherent difficulty of distinguishing among questions of "law," "fact," and "law and fact," and in part from the nature of the inquiry, in which historical facts and factual inferences are often indistinguishable from the legal standards we must apply. Courts of...