Freeman v. National Broadcasting Co., Inc., 43
| Decision Date | 02 April 1996 |
| Docket Number | D,No. 43,43 |
| Citation | 80 F.3d 78 |
| Parties | , 131 Lab.Cas. P 33,352, 24 Media L. Rep. 1653, 3 Wage & Hour Cas.2d (BNA) 289 Jacob FREEMAN, Bernard S. Brown, and Robert L. Garner, Plaintiffs-Appellees, v. NATIONAL BROADCASTING COMPANY, INC., Defendant-Appellant. ocket 94-9301. |
| Court | U.S. Court of Appeals — Second Circuit |
and Susan E. Weiner, New York City), for Defendant-Appellant.
Robert L. Garner, Leonia, New Jersey (Jacob Freeman, Ridgewood, New Jersey, and Bernard S. Brown, Englewood Cliffs, New Jersey), Plaintiffs-Appellees Pro Se.
John G. Kester, Washington, D.C. (Thomas G. Hentoff, Washington, D.C., John F. Sturm, Washington, D.C., Rene P. Milam, Reston, Virginia, Ralph Huber, New York City, Michael J. McCarthy, Dallas, Texas, Harold W. Fuson, Jr., La Jolla, California, Judith L. Fanshaw, La Jolla, California, John B. Jaske, Arlington, Virginia, Donald R. Crews, San Antonio, Texas, Jonathan E. Thackeray, New York City, Francis A. McAnaney, Jr., New York City, George Freeman, New York City, Peter G. Stone, Campbell Hall, New York City, Michael Doody, Stamford, Connecticut, and Mary Ann Werner, Washington, D.C., Jane E. Genster, Washington, D.C.), Amicus Curiae.
Neal D. Mollen, Washington, D.C. (Zachary D. Fasman, Washington, D.C., Jay Morrison, Washington, D.C., Henry L. Baumann, Washington, D.C., Steven Bookshester, Washington, D.C., Terry L. Etter, Washington, D.C., Jeffrey S. Rosen, New York City, E. Patrick McDermott, New York City, Mark Engstrom, New York City, and Ginger McRae, Atlanta, Georgia), Amicus Curiae.
Before: MESKILL, MAHONEY, and WALKER, Circuit Judges.
Defendant-appellant National Broadcasting Company, Inc. ("NBC") appeals from a judgment of the United States District Court for the Southern District of New York (Kathleen A. Roberts, Magistrate Judge ) ordering that NBC pay overtime to plaintiffs-appellees, all of whom were employed by NBC or its New York flagship station, WNBC, as television news writers, editors, producers, or field producers at the rate specified under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Because the magistrate judge erred by rejecting NBC's claim that these journalists were "artistic" professionals and thus exempt from the overtime provisions of the FLSA, we reverse.
The facts of this case are carefully set forth by the magistrate judge in Freeman v. National Broadcasting Co., 846 F.Supp. 1109 (S.D.N.Y.1993). We reiterate only those facts necessary to the disposition of the appeal.
On April 30, 1985, 149 employees of the news division of NBC filed a suit seeking recovery under the FLSA of additional back overtime pay. During the lengthy pre-trial period, most of the original plaintiffs either settled with NBC, voluntarily withdrew their claims with prejudice, or were otherwise dismissed from the lawsuit. After the district court denied cross-motions for summary judgment, the remaining plaintiffs and NBC waived their right to a jury trial and consented to trial before the magistrate judge pursuant to 28 U.S.C. § 636(c). The parties further agreed to treat the outcome of the actions of plaintiffs-appellees--news writer Jacob Freeman, producer Bernard Brown, and field producer Robert Garner--as determinative of NBC's liability to all of its news division employees seeking overtime compensation.
During the period relevant to this action, the three plaintiffs each received a weekly base pay of $895 plus certain fees pursuant to their collective bargaining agreement ("CBA") between their union and NBC. Freeman, 846 F.Supp. at 1111. Under the CBA, plaintiffs were entitled to overtime pay, calculated at one and one-half times their usual hourly compensation, for time worked in excess of forty hours per week. NBC determined plaintiffs' overtime pay based on the hourly equivalent of their base pay alone. The question raised by this appeal is whether the district court properly concluded that plaintiffs are further entitled to the incremental overtime pay equal to the difference between the overtime pay they have already received pursuant to their CBA and the overtime pay amount provided for by the FLSA, which is based upon an hourly rate that includes both fees and base pay. 1 Plaintiffs contend that they are covered by the FLSA and that their fees therefore should also have been included in the "regular rate" from which their overtime pay is calculated. See 29 U.S.C. § 207(e) ().
At trial, Freeman, Brown, and Garner as well as other witnesses testified to the job responsibilities of the three plaintiffs. During the period in issue, plaintiff Freeman was the domestic news writer for Nightly News and was responsible for coordinating coverage of all the United States-sourced news, save that emanating from Washington, D.C. Freeman would write approximately one-third of each Nightly News broadcast. His writing included headlines, teasers, transitions, voice-overs, lead-ins, and stories to be read by the anchor. Freeman was one of only two news writers assigned to Nightly News; his counterpart primarily handled foreign news. The news writer positions on NBC's Nightly News are among the most highly coveted jobs in broadcast journalism, the pinnacle of the profession.
Freeman was also a member of a core editorial/production group based at NBC's New York headquarters. In addition to the foreign and domestic news writers, the group consisted of the executive producer, senior producer, foreign and domestic producers, news editor, and Tom Brokaw, the program's anchor and managing editor. Throughout each day, Freeman participated in meetings with the other members of the group and reviewed newspapers, wire services, and desk logs to stay abreast of the day's news. Freeman was provided with a "blueprint" of the day's newscast that included the subject and the piece's anticipated format, length, and position in the broadcast. As testified at trial by Executive Producer Wheatley, Freeman generally developed the scripts without further guidance from other staff members in working to "create something of a synergy on the words and pictures to tell the story."
Plaintiff Brown was the domestic producer for Weekend Nightly News. This program has substantially the same organizational structure as Nightly News but is staffed with different individuals. As a producer, Brown was one of a handful of persons responsible for putting together and airing the Weekend Nightly News program. Brown's major responsibilities included the generation of domestic story ideas for the program; the development, oversight, and approval of domestic stories put together in the field by correspondents and field producers; and the coordination and editing of these stories. Brown also reviewed, edited, and approved each story's script. In addition, he would write and produce a special program segment called "Last Week."
Plaintiff Garner was a field producer for the news division of WNBC-TV, NBC's wholly-owned and operated flagship station serving the New York metropolitan area. Garner covered news and feature stories for WNBC in the field, often with the assistance of a camera crew and, frequently, an on-air reporter. Garner would gather, develop, shoot, write, and edit news stories. He directed the camera crew and exercised his judgment as to who was to be interviewed, whether the interview was on-camera, the questions to be asked, and the visual elements to be videotaped. Garner exercised editorial control over the news stories he produced; he researched facts, developed story elements, interviewed subjects, wrote the script, and supervised the editing of the videotape. At the studio, Garner created segments suitable for airing on WNBC's local news program.
At the conclusion of trial, the district court issued a written opinion and order holding that Freeman, Brown, and Garner qualified for neither the professional nor the administrative exemption from FLSA coverage and that they were therefore entitled to have their fees included in their base pay for overtime purposes. The parties thereafter reached an agreement as to damages, and on November 25, 1994, the district court entered a final judgment in favor of plaintiffs. NBC appeals.
The CBA in effect at the time this lawsuit was commenced provided for overtime at one and one-half times plaintiffs' base salary. The FLSA, in addition to requiring overtime, requires that the compensation rate from which overtime is calculated include fees as well as base pay. Therefore, while this discussion necessarily addresses the applicability of the FLSA's overtime provisions generally, the more limited consequence of our holding in this case concerns whether plaintiffs' overtime pay should be based upon their receipt of fees in addition to base pay.
The overtime provisions of the FLSA establish the general rule that employees must be compensated at a rate not less than one and one-half times their "regular rate" for all overtime hours. 29 U.S.C. § 207(a)(1). Congress has expressly exempted persons "employed in a bona fide executive, administrative, or professional capacity" from the FLSA's overtime requirements. 29 U.S.C. § 213(a)(1). NBC argues, as it did in the district court, that the plaintiff journalists are exempt from the overtime provisions as...
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