Freeman v. National Broadcasting Co., Inc.

• Decision Date: 20 August 1993
• Docket Number: No. 85 Civ. 3302 (LBS) (KAR).,85 Civ. 3302 (LBS) (KAR).
• Parties: Jacob FREEMAN, et al., Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

846 F. Supp. 1109

Jacob FREEMAN, et al., Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., Defendant.

No. 85 Civ. 3302 (LBS) (KAR).

United States District Court, S.D. New York.

August 20, 1993.

COPYRIGHT MATERIAL OMITTED

Jacob Freeman, plaintiff pro se.

Bernard Brown, plaintiff pro se.

Robert Garner, plaintiff pro se.

Davis, Markel & Edwards by Jay E. Gerber, Dennis H. Tracey, Gretchen Hoag, New York City, Morgan, Lewis & Bockius by Mark S. Dichter, Michael L. Banks, Philadelphia, PA, National Broadcasting Co., Inc. by Patricia Langer, Katherine Raymond, New York City, for defendant.

OPINION AND ORDER

ROBERTS, United States Magistrate Judge:

This action was commenced in 1985 by 149 employees of the news division of defendant National Broadcasting Company ("NBC"), who contend that NBC has improperly calculated the compensation they are entitled to receive pursuant to the overtime provision of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 207.¹ The overtime provision provides that:

no employer shall employ any of his employees * * * for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C.A. § 207(a)(1) (West 1965 & Supp. 1992). The statute further provides that the "regular rate" includes "all remuneration for employment paid to, or on behalf of, the employee." 29 U.S.C.A. § 207(e).

Plaintiffs are members of the National Association of Broadcast Employees and Technicians, AFL-CIO ("NABET"). They work under collective bargaining agreements that establish their base pay and provide for the payment of various "fees" when they perform specific job functions on a given day. The agreements also provide for overtime payments when plaintiffs work more than forty hours in a week, at one and one-half times the plaintiffs' usual hourly compensation.

NBC calculates plaintiffs' overtime based on the hourly equivalent of their base pay alone. Plaintiffs contend that they are covered by the FLSA and that their "fees" should therefore be included in the base wage for purposes of calculating their overtime. NBC asserts that under § 13(a)(1) of the FLSA, 29 U.S.C. § 213(a)(1), plaintiffs are exempt as administrative and/or professional employees and, thus, not entitled to overtime.²

NBC does not dispute that under the FLSA plaintiffs' "fees" are part of their "regular rate" of compensation. See 29 U.S.C.A. § 207(e)(1)-(7). Thus, if plaintiffs are covered by the FLSA's overtime provision, they are entitled to overtime calculated on the basis of one and one-half times the hourly equivalent of their "base pay" plus their "fees."

Since the filing of the action, most of the plaintiffs have settled with NBC or been dismissed for failure to prosecute and/or failure to comply with various pretrial orders. NBC and the remaining plaintiffs subsequently waived a jury trial and consented to trial before me pursuant to 28 U.S.C. § 636(c). Following the denial in July 1989 of cross-motions for summary judgment with respect to plaintiff Jacob Freeman, the parties agreed to sever the actions of three plaintiffs — Freeman, Bernard Brown and Robert Garner — who work primarily as news-writers and producers, in the hope that the court's determination with respect to these three plaintiffs and their job functions would provide sufficient precedent or guidance to NBC and the other plaintiffs that the remaining cases could be resolved without trial.³

The actions brought by Freeman, Brown and Garner were tried without a jury in February and March 1990; post-trial briefing was completed in May 1991.

I find that NBC has failed to prove that plaintiffs are exempt from the FLSA's overtime provision. I find, however, that NBC's failure to compensate employees for overtime was not a "willful" violation of the FLSA.⁴

APPLICABLE LAW

The Fair Labor Standards Act

The legislative history of the FLSA suggests three purposes for the overtime provision. Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1175-76 (7th Cir.1987). First, the overtime provision was intended to prevent workers who would willingly work a long week from taking jobs away from workers who prefer a shorter week. Id. at 1176. Second, Congress intended to spread work and reduce unemployment by imposing a penalty on employers who hire fewer workers and work them longer hours. Id. Finally, the FLSA was intended to protect workers from "substandard wages and oppressive working hours." Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 739, 101 S.Ct. 1437, 1444, 67 L.Ed.2d 641 (1981). Congress reasoned that people working longer than forty hours a week could become tired and careless and thereby endanger themselves or their co-workers. Thus, the overtime provision was intended to protect the economic and physical wellbeing of workers. Mechmet, 825 F.2d at 1176.

Although the FLSA sweeps broadly to encompass a wide range of workers, Congress has chosen to exclude certain employment categories from overtime protection. The FLSA expressly exempts from its overtime requirements those "employed in a bona fide executive, administrative, or professional capacity."⁵ 29 U.S.C.A. § 213(a)(1). In addition, the FLSA expressly excludes certain employees in the field of broadcasting from its overtime provision. Section 213(b)(9) exempts:

any employee employed as an announcer, news editor, or chief engineer by a radio or television station the major studio of which is located (A) in a city or town of one hundred thousand population or less, according to the latest available decennial census figures * * * except where such city or town is part of a standard metropolitan statistical area * * * which has a total population in excess of one hundred thousand, or (B) in a city or town of twenty-five thousand population or less, which is part of such an area but is at least 40 airline miles from the principal city in such area.

29 U.S.C.A. § 213(b)(9).

Plaintiffs contend that by expressly exempting small town television news editors from FLSA coverage, Congress implicitly provided protection under the statute for television news editors in larger towns and cities. NBC rejects this argument as "disingenuous and illogical," emphasizing that it does not make the claim that plaintiffs are exempt under § 213(b)(9), but rather that plaintiffs are exempt under § 213(a)(1) as administrative and/or professional employees.

The Labor Department has made the following general explanatory statement with regard to the exemption of certain radio and television employees from overtime pay requirements under § 213(b)(9):

Some employees of radio and television stations perform work which may be exempt from the minimum wage and overtime requirements under section 13(a)(1) of the Act. This 13(a)(1) exemption applies to employees employed in a bona fide executive, administrative or professional capacity * * * as these terms are defined and delimited by regulations of the Secretary. This exemption continues to be available for employees of radio and television stations who meet the requirements for exemption specified in part 541 of this chapter. The section 13(b)(9) exemption, which is an exemption from the overtime provisions of the Act, but not from the minimum wage requirements, applies to a limited classification of employees employed by small market radio and television stations whose employment meets the requirements for the exemption.

29 C.F.R. § 793.2 (1992) (emphasis added). The Labor Department therefore clearly recognizes that the exemption for news employees in larger markets "continues to be available" pursuant to § 213(a)(1), notwithstanding the provisions applicable to certain small town broadcasting employees under § 213(b)(9).

The Department of Labor Regulations and Interpretations Concerning Exemption Under § 213(a)(1)

Although the FLSA itself does not define the terms "executive," "administrative," and "professional," the statute does authorize the Secretary of the Department of Labor ("the Secretary") to define and delimit these terms by regulation. 29 U.S.C.A. § 213(a)(1). The Secretary has in turn delegated this power to the Administrator of the Wage and Hour Division of the Department of Labor ("the Administrator"),⁶ 29 C.F.R. § 541, who has promulgated both "regulations" and "interpretations" defining the exemptions from FLSA coverage.⁷

Not all agency determinations deserve an equally high degree of judicial deference.⁸ However, courts have recognized that the Administrator's policies with regard to the FLSA's overtime provision are based upon specialized experience and greater information than a judge would be likely to learn in a particular case. The Supreme Court has held that while the Administrator's rulings and interpretations in this context are "not controlling upon the courts by reason of their authority," they "do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance" and are often entitled to considerable weight. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944); see Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946); cf. Dybach v. Florida Dep't of Correction, 942 F.2d 1562 (11th Cir.1991) (regulations issued by the executive officer charged with administration of a statute are controlling when issued to fill a gap left by Congress, unless they are arbitrary).

The Applicable Test

The Administrator has promulgated regulations and interpretations that establish a "short test" and a "long test" to determine if a person is "a bona fide executive, administrative, or professional" employee. See 29 C.F.R. §§ 541.1(f), 541.119, 541.2(e)(2), 541.214, 541.3(e), 541.315. Thus, there are two methods by which an employee may be found exempt from the FLSA's...