Dalheim v. KDFW-TV

• Decision Date: 16 November 1988
• Docket Number: Civ. A. No. CA3-85-0894-D.
• Citation: 706 F. Supp. 493
• Parties: Edward W. DALHEIM, et al., Plaintiffs, v. KDFW-TV, Defendant.
• Court: U.S. District Court — Northern District of Texas

706 F. Supp. 493

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

Civ. A. No. CA3-85-0894-D.

United States District Court, N.D. Texas, Dallas Division.

November 16, 1988.

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Yona Rozen of Hicks, Gillespie, James, Rozen & Preston, P.C., Dallas, Tex., for plaintiffs.

Michael P. Maslanka and David M. Ellis of Clark, West, Keller, Butler & Ellis, Dallas, Tex., for defendant.

MEMORANDUM OPINION AND ORDER

FITZWATER, District Judge.

This wage and hour action presents questions of first impression. It requires the court to determine whether general assignment reporters, producers, directors, and assignment editors at a network affiliate television station are entitled to overtime compensation pursuant to the Fair Labor Standards Act of 1938, 29 U.S.C. § 207 et seq. ("FLSA"), or whether they are exempt as professional, administrative, or executive employees. Following a bench trial, the court finds and concludes¹ that the plaintiffs are entitled to overtime compensation and are not exempt from FLSA coverage. The court also finds and concludes that the defendant did not willfully violate the FLSA in failing to compensate plaintiffs for overtime, and that plaintiffs' damages do not, therefore, predate May 9, 1983.

I.

A.

Plaintiffs are present and former general assignment reporters, producers, directors, and assignment editors employed by defendant, KDFW-TV ("KDFW").² They contend they are or were required to work more than 40 hours per week without overtime pay, in violation of the FLSA. They also allege that KDFW willfully violated the Act. Plaintiffs seek to recover back wages for the period commencing May 9, 1982 to the present, plus interest, liquidated damages, reasonable attorney's fees, and costs.

KDFW responds that plaintiffs are exempt from coverage under 29 U.S.C. § 213(a)(1) as employees working in a bona fide executive, administrative, or professional capacity. Defendant also contends that any violation of the Act was not willful and that, because a two-year statute of limitations applies to nonwillful violations, plaintiffs are not entitled to damages for overtime work performed prior to May 9, 1983.

The resolution of the FLSA coverage question is particularly knotty in the present case. First, the determination whether an employee is exempt is principally one of fact. See Walling v. General Industries Co., 330 U.S. 545, 549-50, 67 S.Ct. 883, 884-85, 91 L.Ed. 1088 (1947). The precedents found in the decisions of other courts are therefore necessarily fact-bound.³ Second, as authorized by Congress, the Administrator of the Wage and Hour Division of the Department of Labor has issued general regulations that define the exemptions from FLSA coverage. The Secretary of Labor has also interpreted the provisions that relate to the professional, executive, and administrative exemptions. See 29 C.F.R. §§ 541.99-541.315 (1987). While these interpretive regulations are used by the courts for guidance and are entitled to considerable weight, see Mabee v. White Plain Publishing Co., 327 U.S. 178, 182, 66 S.Ct. 511, 513, 90 L.Ed. 607 (1946); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944), 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 interpretive guides. As Judge Gesell observed in Sherwood v. The Washington Post, 677 F.Supp. 9, 14 (D.D.C.1988):

It must be recognized that these 30-year-old regulations themselves do not, however, in any respect purport to be categorical and, indeed, given the wide variety of journalism jobs and their ever-changing characteristics, cannot be decisive in the context of present day journalism. They are useful guides, nothing more.

(Emphasis added). Accordingly, to decide the questions presented, this court, to some extent, must "navigate uncharted waters without the assistance of a jurisprudential sextant." (quoting In re Certain Asbestos Cases, 112 F.R.D. 427, 432 (N.D.Tex.1986)).

B.

In order to place in context the findings of fact and conclusions of law set forth infra in the specific context of the claimed exemptions, the court makes these general factual findings concerning plaintiffs' duties as KDFW employees.

KDFW reporters are general assignment reporters, that is, they do not normally specialize in the type of news story that they cover and report. Except on relatively infrequent occasions when reporters are assigned to report for a series,⁴ they receive their assignments the day of the event they are to report and they file their story for a newscast to be aired that day.

Reporters are assigned a story by the assignment manager (who is also known as the coverage manager) and are paired with a news photographer by the assignment editor. Reporters are told the story that the station intends that they cover, what they are expected to shoot, and the intended angle or focus of the story. They are expected to interview persons that they or another KDFW employee has arranged to be interviewed, to cause to be taken the pictures pertinent to the story, and to report the story. Occasionally, reporters are told whom to interview or are informed that an interview has been prearranged and when to conduct the interview. Reporters are also provided newspaper articles, press releases, and/or wire copy to afford them the background necessary to prepare a story. The story may take the form of a reader (or set) piece, freeze frame words, voice-over ("VO"), voice-over sound on tape ("VOSOT"), or a package.⁵

At the time the reporter and photographer go to the location to film a news event, conduct an interview, or tape a reporter stand-up, the reporter will inform the photographer of the focus and background of the story in order to enhance the pertinence of the pictures taken by the photographer.

After a reporter obtains the video, any necessary natural sound or interviews, and any on-camera presentation by the reporter (the reporter stand-up), the reporter returns to the KDFW station to write the story. The manner in which a story is written depends upon the form it is to take. All stories are written to be clear, concise, and understandable. They are composed so as to be understood by a listener who will hear the words spoken only once, and who will have no written version to reinforce what is heard. A TV reporter uses more and shorter sentences than does a print reporter. A reporter will attempt to discern when natural sound, an interviewee sound bite, or pictures can tell a story more effectively or can shorten a story, and will incorporate these elements into a package. The reporter (or producer) may also decide to include file footage.

After the reporter writes a script, the copy is subject to review by the producer of the newscast on which the story is to be broadcast. The producer infrequently changes any portion of the script. The reporter then records the narration that is to accompany the story.⁶ The reporter may or may not select video. If the reporter does so, the reporter's intent is to make a point with the visual. KDFW reporters vary in whether they are present when a video editor edits the pictures to accompany the sound. Some are uniformly present, others write notes to the video editor, and others rely on the editor's judgment to select the appropriate video.

Reporters may also use graphics, superimposed writing (known as "supers," which may, for example, state a person's name or the location of a scene in a picture), and other visuals to assist the TV viewer in understanding a story. The actual graphics are prepared by a character generator operator but are selected by the reporter and, occasionally, by the newscast producer. The reporter may also write a "leadin" for a story to be read by an anchor.

The facts of a news story dictate what the reporter will report, and the event itself and the available visuals will dictate how a story is put together. A reporter may have to "write to the video." Available sound, interviews, and quotations may also dictate the end result. All the available video and audio must be presented in an understandable way. Some reporters look for "grabbing" video to begin a story. They listen to the sound, determine that they have a sufficient knowledge of the facts, and write copy to tie up the story.

In addition, reporters attempt to present a balanced story in which both sides are given a fair opportunity forcefully to articulate their position in their own words.

Stand-ups are included in a package for various reasons. Some reporters use them to personalize a story; others use them only when video that better reports a story is unavailable. Some reporters rarely use stand-ups.

Some reporters appear in live shots carried by electronic newsgathering (ENG) devices or, if long distance, by satellite newsgathering (SNG) equipment. These live shots are usually scripted unless, in the case of breaking news, there is insufficient time to prepare a script.

Reporters and photographers interrelate to produce the best pictures possible. To this end, reporters inform the accompanying photographer what the story is about and the intended angle or focus of the story. They give the photographer their own ideas of the event, the available background material, and information concerning the interviews they will do. Some reporters suggest to the photographer what to shoot; others do not or rely upon the photographer's prior experience (such as when covering a regular news event) to know what to shoot.

The testimony differed concerning the relative value to be ascribed to a reporter's personal characteristics. The court finds that reporters, in the main, attempt to speak in a conversational tone and that...