Secretary United v. Newspapers
U.S. Court of Appeals for the First Circuit
Secretary United v. Newspapers
Opinion
USCA1 Opinion
February 3, 1995
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1032
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.
____________________
No. 94-1033
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.
____________________
ERRATA SHEET
The opinion of this Court issued on January 24, 1995, is
amended as follows:
Footnote 21 on page 48, line 3 should read "post-
investigation violations. Though the magistrate judge hearing
the motion ultimately denied it, the Secretary's supporting
arguments are enlightening: . . ." The last two sentences of the
same footnote should read: "The Secretary should have either
filed a second lawsuit or objected to the magistrate judge's
denial of the motion pursuant to Fed. R. Civ. P. 72(a). The fact
that it did neither may not be rectified through this appeal."
January 31, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1032
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.
____________________
No. 94-1033
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.
____________________
ERRATA SHEET
The opinion of this Court issued on January 24, 1995, is
amended as follows:
On page 35, first full paragraph, line 11, delete "(2)" so
that it reads: ". . . creative in character" and "which depends
primarily on the . . ."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1032
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.
____________________
No. 94-1033
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.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Keeton,* District Judge. ______________
_____________________
____________________
* Of the District of Massachusetts, sitting by designation.
Edward E. Shumaker III, with whom Robert J. Finn and _________________________ ________________
Gallagher, Callahan & Gartrell, P.A., were on brief for _________________________________________
Newspapers of New England, Inc. d/b/a The Concord Monitor, et al.
John G. Kester, Thomas G. Hentoff and Williams & Connolly on ______________ _________________ ___________________
brief for Newspaper Association of America, National Newspaper
Association, American Society of Newspaper Editors, and National
Association of Broadcasters, amici curiae.
Anne Payne Fugett, Attorney, U.S. Department of Labor, with _________________
whom Thomas S. Williamson, Jr., Solicitor of Labor, Monica ____________________________ ______
Gallagher, Associate Solicitor, William J. Stone, Acting Deputy _________ ________________
Associate Solicitor, and Albert Ross, Regional Solicitor, U.S. ___________
Department of Labor, were on brief for the Secretary of Labor.
David S. Barr, Michael J. Gan and Barr, Peer & Camens on ______________ ______________ ____________________
brief for The Newspaper Guild, AFL-CIO, CLC, amicus curiae.
____________________
January 24, 1995
____________________
-2-
TORRUELLA, Chief Judge. These cross appeals require us TORRUELLA, Chief Judge. ___________
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. 201 et seq. ("FLSA" or the "Act"). The
case revolves around whether the employees at issue are exempt
under the "professional employee" exemption of 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
-3-
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.
FACTUAL BACKGROUND FACTUAL BACKGROUND
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,
-4-
either live or through deposition, of fourteen newsroom employees
and several experts in the field of journalism.
1. Newsroom Employees: 1. Newsroom Employees:
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.2
For most of The Monitor's reportorial staff, this employment was ___________
their first in the field of journalism.
a. Staff Writers a. Staff Writers _____________
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."
____________________
2 Of the 32 employees for whom back wages were sought, six held
Masters degrees, four of which were in journalism; 16 had earned
Bachelor's degrees; one employee held an Associate degree; one
had taken some college courses; and one had taken courses at an
institute of photography.
-5-
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.
b. Editors b. Editors _______
Lila Locksley testified that her main duties were
reading wire stories for grammatical and factual errors, writing
-6-
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.
c. Photographers c. Photographers _____________
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
-7-
news photography which is art" because "a news photographer tries
to photograph reality, as it happens, without embellishment,
without taking sides."
2. The Experts' Testimony 2. The Experts' Testimony
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 of professional or changing the Secretary's
position regarding employees in the field of journalism.
-8-
The Monitor offered the testimony of Robert Neale ____________
Copple, Dean of the College of Journalism at the University of
Nebraska at Lincoln ("Dean Copple"). Dean Copple testified that
the current field of journalism is vastly different than it was
in the 1940's. He pointed out that nearly 90 percent of modern
journalists have college degrees. In comparison, he estimated
that only 30 percent of newsroom employees in the 1940's were
college graduates. He further testified that, on the whole, the
journalism done by the staff at The Monitor was creative and ____________
thought-provoking, requiring both imagination and talent.
3. The Monitor's Overtime Policy 3. The Monitor's Overtime Policy ___________
Coverage of legislative sessions and meetings of the
city council often caused the reporters assigned to these events
to work more than forty hours weekly. Although weekly timecards
were collected for each newsroom employee, The Monitor _____________
discouraged overtime, and suggested that those who worked more
than 40 hours should seek compensatory time in lieu of overtime.
That is, they were supposed to work fewer hours on the other days
of the week to reduce their total weekly hours to forty. At
least three of the witnesses who testified had been told by their
superiors to alter the time cards submitted to reduce the amount
of overtime hours originally listed therein. Those employees
also testified that they were occasionally reprimanded when they
did report overtime and told to alter their weekly timecards so
that no overtime hours would be included.
On other occasions, time cards for a given employee
-9-
were completed by a co-employee, who necessarily did not have
accurate information as to the actual hours worked by that
employee. In light of these circumstances, many of the newsroom
employees did not bother to prepare and file an accurate record
of all hours, including overtime, worked weekly.
Employees did receive the compensation required by the
FLSA for the overtime hours that they actually recorded on their
weekly time cards. Mike Pride, The Monitor's editor-in-chief, ____________
testified that it was The Monitor's policy to pay overtime. He ___________
stated that overtime was to be authorized in advance, whenever
possible, but that the overtime was always paid, whether
authorized or unauthorized. Mr. Pride testified that this policy
existed to control the cost of overtime.
PROCEDURAL BACKGROUND PROCEDURAL BACKGROUND
On June 22, 1981, the Secretary brought this action
against The Monitor, and George Wilson, the newspaper's _____________
publisher. The complaint alleged that, since February 4, 1978,
the newspaper had committed willful violations of the overtime
and recordkeeping provisions of the FLSA, and that these
violations were continuing. The Secretary sought a permanent
injunction against the violations, and an award of back wages,
along with interest and liquidated damages. Additionally, the
Secretary claimed that three years of back pay were appropriate,
rather than the normal two, because The Monitor's FLSA violations ___________
had been willful under 29 U.S.C. 255(a).
In its answer, The Monitor denied the Secretary's ____________
-10-
allegations and asserted as an affirmative defense that the
employees were exempt from the applicable regulations of the Act,
that any violation was the result of good faith reliance on the
Department's "interpretations and/or past rulings," and that the
claims were time barred.
The case was tried to the bench. With regard to the
alleged FLSA violations at The Monitor, the Secretary presented ___________
the testimony of Department of Labor ("DOL") Compliance Officer
Scott Wilkinson, and thirteen reporters, photographers, and
editors employed by The Monitor. Throughout the trial, the ____________
Secretary denied The Monitor's claim that its employees were ____________
exempt professionals. For over forty years the Secretary's
position, set forth in non-binding departmental interpretations,
had been that the majority of journalists are not exempt
professionals under the FLSA. The Secretary stood behind this
position and presented expert testimony in support of it at
trial. The Secretary also attempted to present employee
testimony concerning alleged FLSA violations occurring at The ___
Monitor after January 26, 1980, the last day covered by the DOL's _______
investigation. The Monitor objected to this testimony, arguing ___________
that the Secretary could not enlarge its claims without amending
its complaint. The district court allowed the proffered
testimony but reserved a final ruling on the matter for its
opinion.
In its defense, The Monitor primarily argued that the ___________
Secretary's forty-year-old journalism interpretations were
-11-
obsolete and did not reflect the rigors and complexities of
modern journalism. The Monitor moved the court to declare the ___________
interpretations null and void and hold that the majority of
modern journalists qualify as exempt professionals under the
FLSA. As a fallback position, The Monitor contended, albeit less ___________
vigorously, that its employees were exempt professionals
regardless of whether the court overturned the Secretary's
interpretations. The Monitor also maintained that any FLSA ___________
violations it may have committed were not willful.
Although the trial was completed in 1986, the district
court did not issue its opinion and final judgment until
November 3, 1993.3 The court found that The Monitor's newsroom ___________
____________________
3 The Monitor contends that the seven year delay between the ___________
two-week trial and the decision constitutes reversible error.
This type of delay, particularly in light of the sparse factual
findings, concerns us. Not only does it affect the parties'
rights to a speedy adjudication of their claims, it detracts from
the public perception of the judicial system. Nevertheless, The ___
Monitor has failed to enlighten us as to how the delay damaged _______
the credibility of the district court's findings or otherwise
prejudiced The Monitor. We are in agreement with the sentiments ___________
expressed by the Ninth Circuit while contemplating a similar
delay:
We are appalled by the delay, but we are
aware of no case holding that a district
court commits reversible error by taking
too long to decide a case. Indeed, we
doubt that appellate review could ever be
an effective means of enforcing district
court timeliness. . . . To vacate and
remand a decision which the district
court has spent several years crafting
hardly seems a sensible means to reduce
delay. To reverse the decision on the
ground of delay would require us to
presume that lengthy deliberation
inevitably leads to mistake. . . .
Although we do not condone the long
-12-
employees were not entitled to the professional exemption of the
Act's overtime requirements and awarded back wages and liquidated
damages to twelve employees. However, the court found 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.
In finding that the employees were not exempt
professionals, the court relied on the Secretary's journalism
interpretations as persuasive authority. These interpretations
state in pertinent part:
Newspaper writing of the exempt type
must, therefore, be 'predominantly
original and creative in character.'
Only writing which is analytical,
interpretative or highly individualized
is considered to be creative in nature. .
. . Newspaper writers commonly
performing work which is original and
creative within the meaning of 541.3
are editorial writers, columnists,
critics, and 'top-flight' writers of
analytical and interpretative articles.
(2) The reporting of news, the rewriting
____________________
delay, we are not willing to assume
without strong independent support that
the district court departed from its
proper role and considered only the
evidence that was easiest to recall.
Phonetele, Inc. v. American Tel. & Tel. Co., 889 F.2d 224, 232 ________________ _________________________
(9th Cir.), cert. denied, 112 S. Ct. 1283 (1992). ____________
-13-
of stories received from various sources,
or the routine editorial work of a
newspaper is not predominantly original
and creative in character within the
meaning of 541.3 and must be considered
as nonexempt work.
29 C.F.R. 541.303(f) (1975).4
The district court rejected The Monitor's contention ____________
that the interpretations should be declared invalid because of
their age. Rather, the court accepted the interpretations as
persuasive authority of how to apply the professional exemption
in the field of journalism. Once credited as persuasive
authority, the Secretary's interpretations all but decided the
exemption issues. The Monitor presented little or no evidence ___________
suggesting that its employees performed "analytical,
interpretative or highly individualized" work. Nor did The ___
Monitor aver that its reporters were "editorial writers, _______
columnists, critics, and 'top-flight' writers of analytical and
interpretative articles." The Monitor made no significant ____________
attempt to differentiate the work of its reporters,
photographers, and editors from the work done at every newspaper
throughout the country. The Monitor's trial strategy hinged on ___________
its dogmatic attempt to debunk the Secretary's interpretations,
and when this failed, its chances of prevailing on the exemption
issues dwindled.
____________________
4 On October 9, 1992, the interpretive regulations, 29 C.F.R.
541.301, 541.302 and 541.303, were redesignated, without
change, as 29 C.F.R. 541.300, 541.301 and 541.302,
respectively. 57 Fed. Reg. 46744 (1992). We refer to the
earlier codification because it is used throughout the parties'
briefs and the district court opinion.
-14-
Following the entry of final judgment, both the
Secretary and The Monitor filed timely notices of appeal. The ___________
Secretary appealed the district court's finding concerning
willfulness, its refusal to issue an injunction, and its refusal
to award damages for violations occurring after the close of the
DOL's compliance investigation. The Monitor appealed the ____________
district court's decision that its employees were not exempt
professionals. The Monitor's appeal reiterates its trial ____________
strategy and rests primarily on the contention that the
Secretary's journalism interpretations have been rendered
obsolete by the technological and societal changes of the last
forty years. The Newspaper Guild AFL-CIO filed an amicus brief
in support of the Secretary while the Newspaper Association of
America filed a brief supporting The Monitor. ___________
STANDARD OF REVIEW STANDARD OF REVIEW
Appeals involving pure questions of law are generally
reviewed de novo. In re extradition of Howard, 996 F.2d 1320, ________ ____________________________
1327 (1st Cir. 1993) (citation omitted). In contrast, appeals
involving straight factual determinations require us to accept
the trier's resolution unless shown to be clearly erroneous. Id. ___
(citation omitted).
The case before us presents several issues containing
mixed questions of fact and law. As we have previously noted,
these issues require a somewhat nuanced standard of review. See ___
id. "[A]ppeals in the federal court system are usually arrayed ___
along a degree-of-deference continuum, stretching from plenary
-15-
review at one pole to highly deferential modes of review (e.g., ____
clear error, abuse of discretion) at the opposite pole." Id. ___
The standard of review we apply to mixed questions usually
depends on "where they fall along the degree-of-deference
continuum: the more fact dominated the question, the more likely
it is that the trier's resolution of it will be accepted unless
shown to be clearly erroneous." Id. at 1328. ___
-16-
DISCUSSION DISCUSSION
I. The FLSA Exemptions I. The FLSA Exemptions
A. The Statutory Framework A. The Statutory Framework _______________________
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). Overtime is defined as
any employment in excess of 40 hours in a single workweek. Id. ___
However, these overtime compensation provisions do not apply to
"any employees employed in a bona fide executive, administrative,
or professional capacity . . . (as such terms are defined and
delimited from time to time by regulations of the Secretary [of
Labor] . . .)." 29 U.S.C. 213(a)(1). The employer in an FLSA
case bears the burden of establishing that its employees are
exempt, and because of the remedial nature of the FLSA,
exemptions are to be "narrowly construed against the employers
seeking to assert them and their application limited to those
establishments plainly and unmistakably within their terms and
spirit." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960); ______ __________________
Secretary of Labor v. DeSisto, 929 F.2d 789, 797 (1st Cir. 1991) __________________ _______
(citations omitted).
The specific requirements of the professional exemption
are not set forth in the statute. Rather, they are articulated
in the regulations and interpretations of the Secretary. The
Secretary's regulations are promulgated pursuant to an express
delegation of legislative authority and must be given controlling
-17-
weight unless they are found to be arbitrary, capricious, or
contrary to the statute. See Chevron U.S.A. v. Natural Resources ___ ______________ _________________
Defense Council, Inc., 467 U.S. 837, 843-44 (1984). Unlike the _____________________
regulations, however, the Secretary's interpretations are not
conclusive, even in the cases with which they directly deal.
Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944). Rather, ________ ___________
they merely set forth the official position of the DOL on how the
regulations should be applied in specific contexts.
Nevertheless, the courts may refer to the interpretations for
guidance. See id. ___ ___
The relevant legal guidelines for determining whether
an employee is an exempt professional are described in the
Secretary's regulation 29 C.F.R. 541.3. The relevant
interpretations are set forth at 29 C.F.R. 541.301, 541.302 and
541.303. The regulation enumerates several types of professional
exemptions, two of which are relevant here: the so-called
"learned professional" and "artistic professional" exemptions.
1. The Learned Professional Exemption 1. The Learned Professional Exemption
The learned professional exemption deals with
occupations which have specific educational requirements,
including law, accounting, engineering, architecture, nursing,
and medicine. Reich v. Gateway Press, Inc., 13 F.3d 685, 698 _____ ____________________
n.15 (3d Cir. 1994). The regulation states that this exemption
applies to employees whose "primary duty" consists of "[w]ork
requiring knowledge of an advance [sic] type in a field of
science or learning customarily acquired by a prolonged course of
-18-
specialized intellectual instruction and study, as distinguished
froma general academic education. . . ." 29 C.F.R. 541.3(a)(1).
The interpretations state that "[t]he word
'customarily' implies that in the vast majority of cases the
specific academic training is a prerequisite for entrance into
the profession." 29 C.F.R. 541.302(d). Moreover, "[t]he
typical symbol of the professional training and the best prima
facie evidence of its possession is, of course, the appropriate
academic degree, and in these professions an advanced academic
degree is a standard (if not universal) prerequisite." 29 C.F.R.
541.302(e)(1). The interpretations specifically declare that
the exemption does not encompass "such quasi-professions as
journalism in which the bulk of the employees have acquired their
skill by experience rather than by any formal specialized
training." 29 C.F.R. 541.302(d). Further, "[n]ewspaper
writers, with possible rare exceptions in certain highly
technical fields, do not meet the requirements of 541.3(a)(1)
for exemption as professional employees of the 'learned' type."
29 C.F.R. 541.303(f)(1).
2. The Artistic Professional Exemption 2. The Artistic Professional Exemption
The artistic exemption applies to professionals working
in a "recognized field of artistic endeavor." 29 C.F.R. 541.3.
Exempt artistic professionals may be found in many fields,
including music, writing, the theater, and the plastic and
graphic arts.
The regulation outlines both a short and long test for
-19-
determining whether an employee qualifies as an artistic
professional. The long test is applied to employees who earn
weekly salaries of at least $170 but less than $250. The short
test is used for employees whose weekly salary is not less than
$250.5 Both tests demand that the employee's "primary duty"
consist of work requiring "invention, imagination, or talent
. . . ." 29 C.F.R. 541.3. The long test also requires that
the employee's primary duty consist of "[w]ork that is original
and creative in character . . . ." 29 C.F.R. 541.3(a)(2).
The interpretations state that "[o]nly writing which is
analytical, interpretive or highly individualized is considered
to be creative in nature. . . . Newspaper writers commonly
performing work which is original and creative within the meaning
of 541.3 are editorial writers, columnists, critics, and 'top-
flight' writers of analytical and interpretive articles." 29
C.F.R. 541.303(f)(1). With regard to the "invention,
imagination, or talent" requirement, the Secretary's
interpretation says:
In the case of newspaper employees, the
distinction here is similar to the
distinction observed . . . in connection
with the requirement that the work be
"original and creative in character."
Obviously the majority of reporters do
work which depends primarily on
intelligence, diligence, and accuracy.
____________________
5 As the Third Circuit noted, "[t]he short test was added to the
FLSA in 1949 in large part because the DOL felt that salary level
turned out to be a good proxy for determination of professional
status." Gateway Press, Inc., 13 F.3d at 698 n.16. That is, in ___________________
the DOL's judgment, higher salaried employees are more likely to
meet all the requirements of the exemption. Id. ___
-20-
It is the minority whose work depends
primarily on "invention, imagination, or
talent."
29 C.F.R. 541.303(d).
-21-
B. The Authority of the Journalism Interpretations B. The Authority of the Journalism Interpretations _______________________________________________
The Secretary's journalism interpretations have not
changed in any material respect since 1949, long before the
newspaper industry evolved into its current form. The parties
vigorously dispute what weight, if any, courts should give these
interpretations when they apply the regulation. The Monitor asks ___________
us to declare that the interpretations are obsolete and invalid
because they do not reflect the complexities and rigors of modern
journalism. The Secretary contends that the interpretations are
still highly relevant because the technological and societal
changes of the last forty years have not altered the day-to-day
duties of the majority of reporters.
This is the central issue on appeal. Once the district
court accepted them as persuasive authority, the Secretary's
interpretations were nearly conclusive on the exemption issues.
The Monitor made a less extensive effort to prove that its ____________
employees performed "analytical, interpretative or highly
individualized" work. The Monitor made no significant attempt to ___________
differentiate the work of its reporters, photographers, and
editors from the work done at every newspaper throughout the
country. Therefore, in light of The Monitor's trial strategy, if ___________
we decline to invalidate the journalism interpretations, the
record will almost certainly compel us to affirm the district
court's decision on the exemption issues.
As we noted above, although the Secretary's
interpretations are not controlling, courts may refer to them for
-22-
guidance. Skidmore v. Swift & Co., 323 U.S. at 139-40. In ________ ____________
making a similar determination,6 the Supreme Court noted:
[w]e consider that the rulings,
interpretations and opinions of the
Administrator under this Act, while not
controlling upon the courts by reason of
their authority, do constitute a body of
experience and informed judgment to which
courts and litigants may properly resort
for guidance. The weight of such a
judgment in a particular case will depend
upon the thoroughness evident in its
consideration, the validity of its
reasoning, its consistency with earlier
and later pronouncements, and all those
factors which give it power to persuade,
if lacking power to control.
Skidmore, 323 U.S. at 140. The Monitor contends that the ________ ____________
district court misapplied Skidmore. Specifically, The Monitor ________ ____________
asserts that any reliance on the Secretary's interpretations was
erroneous because they are "outdated, inconsistent with other
agency pronouncements, and contain vague and undefined terms."7
____________________
6 In Skidmore, the Supreme Court was evaluating the persuasive ________
weight of the opinions, interpretations, and rulings of the Wage
and Hour Administrator under the FLSA.
7 We are unpersuaded by The Monitor's contention that the ____________
Secretary's interpretations should have been disregarded because
they are inconsistent with other agency pronouncements and
internally inconsistent.
There is no rule of law requiring an administrative agency to
give a term the same definition in all contexts. "When
construing the FLSA and its exemptions, courts should look
primarily to the purpose of the act itself -- and not
interpretations of the same or a similar term made in other
contexts." Reich v. Gateway Press, Inc., 13 F.3d at 699 n.17. _____ ___________________
With regard to the assertion that the interpretations are
internally inconsistent, we follow the reasoning of the Third
Circuit:
"We also reject the amicus'
characterization of the interpretations
-23-
As a preliminary matter, we discuss the standard of
review appropriate for appellate scrutiny of a district court's
Skidmore analysis.8 Although we have not previously addressed ________
this issue, the Fifth Circuit provides meaningful guidance. In
Dalheim v. KDFW-TV, a television station charged with violating _______ _______
the FLSA's overtime provisions made essentially the same argument
asserted by The Monitor: that "the district court gave the ____________
interpretations undue weight, thus blinding itself to the
realities of modern broadcast journalism." 918 F.2d 1220, 1228
(5th Cir. 1990). The Fifth Circuit reasoned that a district
court's Skidmore analysis is merely a fact-specific inquiry to ________
____________________
as being 'self-contradictory' because
they state that 'many' reporters are
exempt while 'many' are not. The
interpretations merely recognize that the
determination of whether a reporter is a
professional does not depend on the title
that a paper gives a reporter. Rather,
it instead depends upon the specific
characteristics of a given reporter's
job."
Id. ___
8 There are, in fact, two inquiries that must be made when a
court is determining what weight should be given to an
administrative interpretation. First, a court will declare an
interpretation invalid if it is found to be arbitrary,
capricious, or contrary to the statute. See Martin v. ___ ______
Occupational Safety and Health Review Comm'n, 499 U.S. 144, 158 ______________________________________________
(1991) (holding that the "Secretary's interpretation of an
ambiguous regulation is subject to the same standard of
substantive review as any other exercise of delegated lawmaking
power."); Chevron U.S.A. v. Natural Resources Defense Council, ______________ ____________________________________
Inc., 467 U.S. 837, 843-44 (1984). Second, the court applies the ____
Skidmore analysis to determine the level of deference it should ________
accord a valid administrative interpretation. Here, we are only
concerned with the second inquiry because neither party contends
that the Secretary's interpretations are invalid under the first.
-24-
determine whether the interpretation reflects an analogy useful
in deciding the case before it. Id. Thus, any "attempt to ___
debunk the analogy between the interpretation's portrayal of
broadcasting and journalism as they existed in the 1940's and
broadcast journalism as it exists today is a veiled attack on the
district court's findings of fact." Id. Consequently, because a ___
district court's Skidmore analysis is fact-based, we review it ________
subject to the clearly erroneous standard of Federal Rule of
Civil Procedure 52(a).
Both the Secretary and The Monitor presented extensive ____________
expert testimony as to whether the technological and societal
changes of the past forty years have rendered the Secretary's
journalism interpretations obsolete. The Secretary presented the
testimony of Ben Bagdikian, Dean of the Graduate School of
Journalism at the University of California at Berkeley.
Mr. Bagdikian testified that although the field of journalism has
changed radically, these changes do not warrant modifying the
Secretary's view that most journalists do not qualify as exempt
professionals under the FLSA. In his view, the focus of the
majority of journalists is the same today as it was forty years
ago: to report disciplined observations of public people and
public events. This testimony essentially ends appellate review
of the matter. It was neither severely impeached nor inherently
implausible, and "[o]nce credited, it supported the district
court's rationale almost singlehandedly." Rivera-G mez v. de ____________ __
Castro, 900 F.2d 1, 4 (1st Cir. 1990). Although The Monitor ______ ___________
-25-
presented conflicting testimony, the district court's decision to
accept the interpretations as persuasive authority cannot be said
to be clearly erroneous.9
C. The Professional Exemptions C. The Professional Exemptions ___________________________
Whether The Monitor's employees are within the scope of ___________
the FLSA professional exemption is a mixed question of fact and
law. Gateway Press, Inc., 13 F.3d at 691. In reviewing this ____________________
issue, we elect to follow the Fifth Circuit's approach, in which
the appellate court separates out the questions of fact from the
ultimate legal conclusion and applies a clearly erroneous
standard to the former while exercising plenary review over the
latter. Dalheim, 918 F.2d at 1226. _______
As the Fifth Circuit noted, there are three distinct
types of findings involved in determining whether an employee is
____________________
9 The Monitor also contends that the district court mistakenly ___________
confused a Wage and Hour Administrator's interpretation, 29
C.F.R. 541.303, with the Secretary of Labor's regulation, 29
C.F.R. 541.3, and thus applied incorrect legal standards in
determining that The Monitor's employees were not exempt from the ___________
overtime provisions of the FLSA. We find this contention
completely without merit. As we noted above, the district
court's Skidmore analysis and subsequent reliance on the ________
Secretary's interpretations were not in error. Our review of the
record and the district court's opinion indicates that it was
well aware of the distinction between the regulations and
interpretations. Indeed, the district court's opinion quotes
from Skidmore immediately prior to its refusal to disregard the ________
Secretary's interpretations. Reich v. Newspapers of New England, _____ __________________________
Inc., 834 F. Supp. 530, 535 (1993). The only evidence supporting ____
The Monitor's contention is the fact that the district court's ____________
opinion incorrectly refers to the interpretations as regulations.
See, e.g., id. at 534-35. These misstatements, considered in ___ ____ ___
light of the record and the district court's Skidmore analysis, ________
do not indicate that the district court confused the
interpretations and regulations. Rather, this is more likely a
matter of miscitation than an indication of a basic
misunderstanding.
-26-
exempt. Id. First, the district court makes findings of ___
historical fact, regarding, for example, the day-to-day duties of
the employees. Id. These are reviewed under the "clearly ___
erroneous" standard of Federal Rule of Civil Procedure 52(a).
Id.; see also Icicle Seafoods v. Worthington, 475 U.S. 709, 714 ___ ________ ________________ ___________
(1986); Donovan v. Burger King Corp., 672 F.2d 221, 227 (1st Cir. _______ _________________
1982). Second, to apply the Secretary's regulations, the
district court must draw conclusions from the historical facts.
Dalheim, 918 F.2d at 1226. For example, whether an employee's _______
work requires "invention, imagination, or talent" and whether
such work constitutes an employee's "primary duty" are
conclusions drawn from historical facts. Id. Such inferences ___
are also subject to the clearly erroneous standard of review.
Id. Lastly, the district court makes the ultimate legal ___
conclusion of whether an employee is exempt. Although this is
based on both historical facts and factual inferences, it is a
conclusion of law, over which we exercise plenary review. Id.; ___
see also Icicle Seafoods, 475 U.S. at 714; Gateway Press, Inc., ________ _______________ ____________________
13 F.3d at 691.
Although the determination of whether an employee is
exempt is clearly tied to the district court's factfinding, we
are acutely aware of our duty to canvas the record thoroughly.
Further, we review the district court's decision to ensure that
its factfinding was guided by the proper legal standards. "[T]o
the extent that findings of fact can be shown to have been
predicated upon, or induced by, errors of law, they will be
-27-
accorded diminished respect on appeal." Dedham Water Co. v. _________________
Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir. 1992). ____________________________
1. Artistic Professional Exemption 1. Artistic Professional Exemption
As we discussed above, 29 C.F.R. 541.3 outlines both
a short and long test for determining whether an employee
qualifies as an artistic professional. The long test is applied
to employees who earn weekly salaries of at least $170 but less
than $250. The short test is used for employees whose weekly
salary is not less than $250.
Although the long test has many requirements,10 the
____________________
10 The long test exempts as an artistic professional any
employee:
(a) Whose primary duty consists of the
performance of:
. . .
Work that is original and creative in
character in a recognized field of
artistic endeavor (as opposed to work
which can be produced by a person endowed
with general manual or intellectual
ability and training), and the result of
which depends primarily on the invention,
imagination, or talent of the employee;
and
(b) Whose work requires the consistent
exercise of discretion and judgment in
its performance; and
(c) Whose work is predominantly
intellectual and varied in character (as
opposed to routine mental, manual,
mechanical, or physical work) and is of
such character that the output produced
or the result accomplished cannot be
standardized in relation to a given
period of time; and
-28-
most significant for our analysis are that (1) the employee's
primary duty consist of "[w]ork that is original and creative in
character in a recognized field of artistic endeavor" and (2)
"the result of which depends primarily on the invention,
imagination, or talent of the employee . . . ." 29 C.F.R.
541.3(a)(2); see Gateway Press, Inc., 13 F.3d at 698. ___ ___________________
The short test for determining whether an employee is
exempt as an artistic professional is more simple. It requires
only that the employee's primary duty consist of "work requiring
invention, imagination, or talent in a recognized field of
artistic endeavor . . . ." 29 C.F.R. 541.3(e); see Gateway ___ _______
Press, Inc., 13 F.3d at 698. The short test does not include the ___________
requirements of 29 C.F.R. 541.3(b), (c) and (d) and does not
require that the work be "original and creative in character."
As the Third Circuit noted, "[w]hile the tests are not all that
different, it seems clear that any employee who is not a
professional under the short test will not be one under the long
test." Gateway Press, Inc., 13 F.3d at 698. ___________________
a. Short Test Employees a. Short Test Employees
The Monitor maintains that the district court ____________
erroneously applied the long test for artistic professionals to
____________________
(d) Who does not devote more than 20
percent of his hours worked in the
workweek to activities which are not an
essential part of and necessarily
incident to the work described in
paragraphs (a) through (c) of this
section . . . .
29 C.F.R. 541.3 (1975).
-29-
three reporters -- David Olinger, Charles Stein, and Paul Carrier
-- whose weekly salary qualified them for analysis under the
short test. The Monitor contends that the district court ____________
incorrectly required that the newspaper writing of these
employees be "'predominantly original and creative in character'"
when the correct standard merely required that the employee's
"primary duty" consist of "work requiring invention, imagination,
or talent in a recognized field of artistic endeavor." Reich v. _____
Newspapers of New England, Inc., 834 F. Supp. 530, 537 (D.N.H. ________________________________
1993). The Monitor claims that this was reversible error because ___________
the district court erroneously required these employees to meet a
much more difficult standard.
The district court's opinion suggests that it did not
specifically apply the short test to those employees of The ___
Monitor with weekly salaries above $250. However, as we discuss _______
below, our review of the record against the backdrop of the
Secretary's interpretations leads us to conclude that these three
employees do not qualify as exempt artistic professionals, even
under the short test. Therefore, even if the district court
erroneously applied the "original and creative in character"
requirement of the long test, this error was harmless.
The relevant portion of the short test requires us to
determine (1) the employee's "primary duty," and (2) whether the
performance of that duty requires "invention, imagination, or
talent." Because the Secretary stipulated that writing was the
primary duty of these employees, the only issue remaining is
-30-
whether their writing required "invention, imagination, or
talent." With regard to the "invention, imagination, or
talent" requirement, the Secretary's interpretation says:
In the case of newspaper employees, the
distinction here is similar to the
distinction observed . . . in connection
with the requirement that the work be
"original and creative in character."
Obviously the majority of reporters do
work which depends primarily on
intelligence, diligence, and accuracy.
It is the minority whose work depends
primarily on "invention, imagination, or
talent."
29 C.F.R. 541.303.11 The district court found, and we agree,
that The Monitor employees did not fulfill this requirement. ___________
The record demonstrates that the day-to-day duties of
these three reporters consisted primarily of "general assignment"
work. Among other things, their stories covered public utility
commission hearings; criminal and police activity; city and state
____________________
11 We follow the reasoning of the Third Circuit's Gateway Press, ______________
Inc. opinion and reject the argument that the interpretations ____
only apply to the long test:
"Although this interpretation of the
phrase 'invention, imagination, or
talent' seems to refer to the phrase as
it is used in [the long test] rather than
as it is used in [the short test], there
is nothing to suggest that such a phrase
has a different meaning in the two
different parts of the regulations.
Indeed, as a matter of statutory
construction, where one word is used in
one place, it should have the same
meaning in another place in the same
statute . . . There is no reason to think
that this principle should not equally
apply to regulations." Reich v. Gateway _____ _______
Press, Inc., 13 F.3d at 700 n.18 _____________
(citations omitted).
-31-
legislative proceedings; business events, including compiling a
list of people who had been promoted; and local art events.
Rarely were they asked to editorialize about or interpret the
events they covered. Rather, the focus of their writing was, as
David Olinger phrased it, "to tell someone who wanted to know
what happened . . . in a quick and informative and understandable
way." Thus, we believe that these reporters were like the
majority of reporters in that their work "depends primarily on
intelligence, diligence, and accuracy." 29 C.F.R. 541.303.
They were not performing duties which would place them in that
minority of reporters "whose work depends primarily on
'invention, imaging [sic], or talent.'" Id. Although some of ___
the work product of these employees demonstrated creativity,
invention, imagination, and talent, their writing did not exhibit
these qualities on a day-to-day basis.12
Of course, our decision should not be read to mean that
all journalism work is nonexempt. The field of newspaper writing
is certainly a medium capable of sustaining creativity. We want
to reiterate that whether an employee is an exempt professional
is independent of the title the employer ascribes to the
position. As the interpretations point out, "[t]he field of
____________________
12 The issue of whether an employee is an exempt professional
forces the opposing parties into paradoxical positions: The
management argues that the employee's work is distinct and
creative, and thus does not merit overtime pay; the worker
maintains that he deserves overtime pay because his work is
routine and non-specialized. Both parties are compelled to make
arguments contrary to their customary economic bargaining
positions.
-32-
journalism . . . employs many exempt as well as many nonexempt
employees under the same or similar job titles." 29 C.F.R.
303(f). The determination of whether the exemption applies to a
given employee depends on the specific duties and characteristics
required by the position rather than its actual title. However,
"if we were to find that [these] reporters are in the minority of
reporters whose work requires invention, imagination, or talent,
it is hard to see what reporters would be left in the majority."
Gateway Press, Inc., 13 F.3d at 700; cf. Sherwood v. The ____________________ ___ ________ ___
Washington Post, 677 F. Supp. 9, 11 (D.D.C.), rev'd, 871 F.2d _______________ _____
1144 (D.C. Cir. 1989) (The court found that 13 writers for The ___
Washington Post qualified as exempt artistic professionals ________________
because their writing was individual, interpretive, and
analytical; because success at The Post requires a "special _________
talent"; and because they "produce original and creative writing
of high quality within the meaning of the regulations . . . ."
Although this case was reversed because factual disputes rendered
disposition on summary judgment inappropriate, it serves to
highlight the distinction between exempt and non-exempt newspaper
work.).13
____________________
13 The district court recently concluded trial and released its
opinion in Sherwood, holding that Sherwood was an exempt employee ________
because his reporting job at The Washington Post required _____________________
invention, imagination, and talent. Sherwood v. The Washington ________ ______________
Post, Civil Action No. 86-2701. Without passing on the merits of ____
this decision, we note that it is distinguishable on its facts
from the present case. Most notably, the Sherwood court ________
distinguished the work of reporters at The Washington Post from ____________________
the type of small town reporting addressed by the Third Circuit
in Gateway Press, Inc.. Thus, the district court's second ____________________
opinion in Sherwood again highlights the distinction between ________
-33-
b. Long Test Employees b. Long Test Employees
The Monitor also contends that the district court ____________
misapplied the long test, and consequently, erroneously
determined that the remainder of The Monitor employees at issue ___________
in this case were not exempt professionals. Specifically, The ___
Monitor contends that the record demonstrates that the staff _______
writers, photographers, and editors at The Monitor qualify as ___________
exempt artistic professionals under a correct application of the
regulation. We disagree.
As we noted above, the district court's reliance on the
Secretary's interpretations was not erroneous. Therefore,
because we find that the district court conducted its analysis
within the correct legal framework, we review its factfinding for
clear error.
i. Staff Writers: i. Staff Writers:
With regard to the staff writers salaried below $250
per week, their day-to-day responsibilities were very similar to
those of the staff writers discussed above. For example, staff
writer Margaret Burton testified that three fourths of her
stories covered hard news, such as the proceedings of the school
board, educational issues, trials and court hearings, as well as
the legislative hearings. She estimated that only one fourth of
her writing constituted feature writing requiring in-depth
interpretation or analysis.
Staff writer Sharon Goss testified that during her
____________________
exempt and non-exempt work in the field of journalism.
-34-
first year at the paper, she spent approximately sixty percent of
her time writing what she called feature stories. The topics of
these stories were usually assigned by an editor, and rarely
demanded the imagination, interpretation, or invention that
characterizes exempt newspaper writing.14 The remaining forty
percent was divided between "deadline work" and clerical tasks,
such as compiling local movie listings. During the latter
portion of her tenure at The Monitor, as an educational reporter ___________
and a regional reporter, she covered educational issues and
government and town planning meetings.
Staff writer Randall Keith testified that the vast bulk
of his first year at The Monitor was spent working the city hall ____________
beat. His second year was divided between covering the police
beat and business writing. His third year was spent as a
regional reporter, covering town meetings and activities.
Overall, he described his day to day duties as being primarily
the type of general assignment work which could be accomplished
by anyone with general intellectual training and ability.
As these examples make clear, the employees salaried
below $250 had substantially the same responsibilities as those
reporters, discussed above, with salaries above $250.
Consequently, we find that the record contains ample support for
the district court's conclusion that these reporters were not
____________________
14 For instance, one story reported on the local attitude toward
the rising price of hamburgers. Another story, on a local man
who had just opened an art store, centered on his business, his
goods, and whether he thought it would succeed.
-35-
performing the type of work that would qualify them for the
artistic professional exemption. Rather, like their higher-
salaried counterparts, they were like the majority of reporters
in that their work "depends primarily on intelligence, diligence,
and accuracy." They were not performing duties which would place
them in that minority of reporters "whose work depends primarily
on 'invention, imaging [sic], or talent.'"
ii. Photographers: ii. Photographers:
We also find ample support in the record for the
district court's conclusion that the photographers at The Monitor ___________
were not performing exempt work. Staff photographer Tom Sobolik
testified that most of his film was shot at sporting events. He
also listened to the police radio and photographed any newsworthy
events it reported, including auto accidents and fires.
Approximately seventy percent of Tom Sobolik's photography was
assigned. Further, he testified that although there are some
creative aspects to his photography, "a large proportion of it is
pretty run of the mill and pretty standardized."
Ken Williams testified that he spent most of his
picture-shooting time photographing sporting events, the pet of
the week, interiors and exteriors of buildings, press meetings,
and meetings with the Governor. He also spent a large amount of
time in the darkroom developing the pictures he and the other
photographers had shot. He conceded that the darkroom work and
the majority of his photography did not, in his mind, constitute
artistic work.
-36-
The testimony of these photographers indicates that
they, like the staff writers, were not performing the type of
photographic work which would qualify them under the artistic
exemption.15
iii. Editors: iii. Editors:
The Monitor asserts that the district court erroneously ___________
ruled that three editors were not exempt artistic professionals
under the long test despite the Secretary's concession that they
were exempt under the short test. Because this contention has
absolutely no basis in the record, we reject it.
Admittedly, the Secretary concluded that the three
editors at issue -- Sharon Goss, Nancy Druelinger, and Lila
Locksley -- qualified for exemption once their salaries rose
above $250. Having so concluded, however, the Secretary did not
pursue, and the court did not award, back wages for the period
during which these employees were paid over $250 per week.
Rather, the court concluded that before their weekly salaries
rose above $250, these editors were not performing work that
qualified them for exemption under the long test for artistic
professionals,16 which requires that their primary duty consist
____________________
15 The Monitor contends that the district court erroneously ____________
applied the long test to Ken Williams, whose weekly salary was
above $250. The opinion does not conclusively indicate what test
was applied to Ken Williams. Nevertheless, we find that the
error, if indeed there was one, was harmless. The work performed
by Mr. Williams did not require "invention, imagination, or
talent," and thus is not exempt, even under the short test.
16 The Monitor's brief suggests that there is an inconsistency ___________
between the Secretary's decision not to pursue back wages for
editors paid over $250 per week and the district court's decision
-37-
of "[w]ork that is original and creative in character" and "which
depends primarily on the invention, imagination, or talent of the
employee . . . ." 29 C.F.R. 541.3(a)(2).
We find this conclusion to have ample support in the
record. Ms. 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. Ms. 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.17 Ms. Goss's testimony was comparable.
Overall, their day-to-day work was the type of routine editorial
work that is generally considered non-exempt. See 29 C.F.R. ___
541.303(f) (The reporting of news, the rewriting of stories
received from various sources, or the routine editorial work of a
newspaper is not predominantly original and creative in character
within the meaning of 541.3 and must be considered as nonexempt
work.).
____________________
that the lower paid editors were not exempt under the long test
for artistic professionals. Once again, The Monitor is wrong. ___________
The Secretary determined that the higher paid editors were exempt
under the executive exemption 29 C.F.R. 541.1 -- not the short
test for artistic professionals.
17 Admittedly, layout and page design can qualify under the
artistic professional exemption. In fact, the Secretary
concluded that Tom Chants, an editor at The Monitor, was an ___________
exempt artistic professional. However, as Druelinger testified,
Chants's work was considerably different from the work that she,
Ms. Locksley, and Ms. Goss performed: "Tom Chants, he did the
beautiful art work pages. He was able to take lots of time and
did not do the breaking news. He did the beautiful features,
layouts and fill. He had a lot more time to do his pages."
-38-
2. The Learned Professional Exemption 2. The Learned Professional Exemption
The district court also held that The Monitor's ____________
journalists did not qualify under the learned professional
exemption of 29 C.F.R. 541.3. In a footnote to its brief, The ___
Monitor joins its amici supporters in contending that this _______
determination was error.
Exempted learned professions include law, accounting,
engineering, architecture, nursing, and medicine. 29 C.F.R.
541.302. The Monitor would have us add journalism to this ____________
list, arguing that most of its employees had either journalism
degrees or liberal arts degrees with an emphasis on writing.
The learned professional exemption applies to employees
whose "primary duty" consists of "[w]ork requiring knowledge of
an advance [sic] type in a field of science or learning
customarily acquired by a prolonged course of specialized
intellectual instruction and study, as distinguished from a
general academic education . . . ." 29 C.F.R. 541.3(a)(1). As
the interpretations make clear, "[t]he word 'customarily' implies
that in the vast majority of cases the specific academic training
is a prerequisite for entrance into the profession." 29 C.F.R.
541.302(d). Further, "[t]he typical symbol of the professional
training and the best prima facie evidence of its possession is,
of course, the appropriate academic degree, and in these
professions an advanced academic degree is a standard (if not
universal) prerequisite." 29 C.F.R. 541.302(e)(1). The
interpretations specifically state that the exemption does not
-39-
encompass "such quasi-professions as journalism in which the bulk
of the employees have acquired their skill by experience rather
than by any formal specialized training." 29 C.F.R.
541.302(d).
While we acknowledge that these interpretations are not
controlling, we join the substantial number of courts that have
chosen to follow them on this issue. See, e.g., Gateway Press, ___ ____ ______________
Inc., 13 F.3d at 698 (holding that the "case law has held that ____
reporters do not come within the scope of the learned
exemption"); Sun Publishing Co. v. Walling, 140 F.2d 445 (6th ___________________ _______
Cir.), cert. denied, 322 U.S. 728 (1944) (rejecting the ______________
contention that writers and reporters are learned professionals);
Dalheim v. KDFW-TV, 706 F. Supp. 493, 501-02 (N.D. Tex.) (holding _______ _______
that despite the fact that many broadcast journalists hold
undergraduate degrees and adhere to an established code of
ethics, they are not learned professionals because, inter alia, __________
their training is more akin to an apprenticeship than to
intellectual instruction and study), aff'd, 918 F.2d 1220, 1226 _____
(5th Cir. 1990); Freeman v. National Broadcasting Co., Inc., 846 _______ _______________________________
F. Supp. 1109, 1154-55 (S.D.N.Y. 1993) (In holding that the
broadcast journalists were not exempt learned professionals, the
court noted that journalism interpretations remain persuasive
despite their age because, inter alia, "experience and on-the-job __________
training still play a substantial role in the training of
journalists . . . .").
In upholding the district court's finding that the
-40-
journalists at The Monitor do not qualify under the learned ___________
professional exemption, we note that many experts in the field
believe that journalism can only be learned in the newsroom
itself. No particular academic degree is a prerequisite for
entrance into the field and applicants are not required to
demonstrate mastery over a specific body of knowledge. Rather,
as Dean Bagdikian from the Graduate School of Journalism at the
University of California at Berkeley testified, editors hiring
entry-level journalists are mainly concerned with whether the
applicant's writing samples demonstrate accuracy, intelligence,
and an ability to write clearly. Applicants possessing these
qualities are the most likely to absorb the on-the-job training
and become successful journalists. The importance of actual
newspaper experience as opposed to journalism courses is
demonstrated by the fact that top-flight newspapers generally
hire only experienced applicants with demonstrable journalism
skills. See Sherwood, 677 F. Supp. at 11. In light of these ___ ________
considerations, we agree with the district court's determination
that the journalists at The Monitor are not exempt learned ____________
professionals.
3. Rule 52(a) Findings of Fact 3. Rule 52(a) Findings of Fact ___________________________
The Monitor asserts that we must vacate the judgment ___________
and remand the case to the district court for its alleged failure
to make the findings of fact required by Federal Rule of Civil
Procedure 52(a). Rule 52(a) requires that "[i]n all actions
tried upon the facts without a jury . . . the court shall find
-41-
the facts specially and state separately its conclusions of law
thereon . . . ." Fed. R. Civ. P. 52(a). We have previously
noted, however, that the purpose of the rule is to apprise the
appellate court of the grounds on which the trial court based its
decision. Applewood Landscaping & Nursery Co., Inc. v. _______________________________________________
Hollingsworth, 884 F.2d 1502, 1503 (1st Cir. 1989) (citation _____________
omitted). Therefore, findings are sufficient so long as they
"indicate the factual basis for the ultimate conclusion." Kelley ______
v. Everglades Drainage District, 319 U.S. 415, 422 (1943). The ____________________________
"'judge need only make brief, definite, pertinent findings and
conclusions upon the contested matters; there is no necessity for
over-elaboration of detail or particularization of facts.'"
Applewood Landscaping, 884 F.2d at 1503 (quoting Fed. R. Civ. P. ______________________
52(a), advisory committee's note to 1946 Amendment). "As long as
such 'brief' and 'pertinent' findings are made and 'the record as
a whole supports the district court's findings of fact,' we can
affirm its result." Id. at 1503 (citations omitted). Further, ___
even where the district court's findings were poorly done because
they consisted "mainly of mere conclusions . . . and [did] not
articulate specific factual bases for the trial court's
boilerplate decision," there was no Rule 52(a) defect because
"despite the factual shortcomings, the basis for the court's
decision is clear [and the] record gives substantial and
unequivocal support for the ultimate conclusion." Unt v. ___
Aerospace Corp., 765 F.2d 1440, 1444 (9th Cir. 1985), cited with ________________ __________
approval in Applewood Landscaping, 884 F.2d at 1504. We have ___________ ______________________
-42-
also noted that anemic factual findings are not fatal to the
decision so long as a complete understanding of the issues may be
had from the record on appeal. Applewood Landscaping, 884 F.2d _____________________
at 1504 (citations omitted).
After reviewing both the record and the opinion with
these principles in mind, we conclude that the district court's
findings of fact are adequate. The Monitor's position throughout ___________
the trial, put forth by its expert witnesses and its editor-in-
chief, was that the technological advances in the field of
journalism had rendered the Secretary's interpretations obsolete
and that most, if not all, employees in the field today were
exempt professionals. The Monitor tried to highlight the changes ___________
in the newspaper business brought about in the last forty years
and explain how these changes had undermined the pertinence of
the Secretary's interpretations. The district court's opinion
makes it clear that it simply did not find this evidence
sufficient to render the interpretations inapplicable.
Newspapers of New England, Inc., 834 F. Supp. at 535-36. _______________________________
Once the district court accepted the Secretary's
interpretations as persuasive authority, the rest of its decision
was all but determined. The Monitor presented little or no ____________
evidence suggesting that the employees at issue fell into that
minority of reporters whose work was dependent on invention,
imagination, or talent. The Monitor made no significant attempt ___________
to differentiate the work of its reporters, photographers, and
editors from the work done at every newspaper throughout the
-43-
country. Given this framework, the district court's admittedly
meager findings of fact provide an adequate basis for appellate
review. Between the opinion and the record, we have garnered a
thorough understanding of the proceedings below, and that is all
that Rule 52(a) requires.
II. The Willfulness of the FLSA Violations II. The Willfulness of the FLSA Violations
The FLSA imposes a two-year statute of limitations
unless the violations are shown to be willful, in which case a
three-year period applies. 29 U.S.C. 255(a). In the present
case, the district court found that the FLSA violations at The ___
Monitor were not willful and thus awarded back wages for only the _______
two-year period before the suit was filed rather than the three-
year period claimed by the Secretary. The Secretary asserts that
The Monitor's FLSA violations were indeed willful and that the ____________
district court's determination to the contrary was in error.
FLSA violations are willful where the employer "knew or
showed reckless disregard for the matter of whether its conduct
was prohibited by the statute." McLaughlin v. Richland Shoe Co., __________ _________________
486 U.S. 128, 133 (1988). Whether an FLSA violation is willful
is a mixed question of law and fact and is therefore subject to
the clearly erroneous standard of Federal Rule of Civil Procedure
52(a). See McLaughlin v. Hogar San Jos , Inc., 865 F.2d 12, 14 ___ __________ _____________________
(1st Cir. 1989) (holding that whether an FLSA violation was
committed in good faith is a mixed question of law and fact and
is therefore reviewed only for clear error). Appealing a
district court's finding on a mixed question "is an uphill battle
-44-
as Congress has in unambiguous language expressly granted the
primary decisional power in this respect to the district court,
not to the Secretary or the courts of appeal." See id. ___ ___
(citations omitted). The clearly erroneous standard "plainly
does not entitle a reviewing court to reverse the finding of the
trier of fact simply because it is convinced that it would have
decided the case differently." Anderson v. City of Bessemer ________ _________________
City, North Carolina, 470 U.S. 564, 573 (1985). Rather, "[a] ____________________
finding is 'clearly erroneous' when although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed." United States v. United States Gypsum Co., 333 U.S. _____________ ________________________
364, 395 (1948). Where the evidence is susceptible of two
plausible interpretations, the trier of fact's choice between
them cannot be clearly erroneous. Anderson v. Bessemer City, 470 ________ _____________
U.S. at 574 (citations omitted).
Based upon our review of the record, we find no clear
error in the district court's finding that The Monitor did not ____________
willfully violate the overtime provisions of the FLSA.18 The
____________________
18 In pertinent part, the district court's opinion states:
While it is here arguable that the
defendants were unreasonable in not more
strictly policing the accuracy of the
time cards, the preponderance of the
evidence does not support a finding that
they acted recklessly. This is
particularly true in light of the
closeness of the findings in the more
recent cases concerning exemptions for
those who write and edit for the media.
-45-
Secretary did present plausible arguments in support of his
position. The Secretary argued that the violations were willful
and could not have been the product of ignorance because the DOL
explained the overtime and recordkeeping provisions of the FLSA
during its 1974 investigation of the newspaper. Further, the
fact that The Monitor paid its employees for all reported ____________
overtime demonstrates that it was indeed aware of the FLSA
overtime requirements. Additionally, several employees testified
that they had been instructed by superiors to report no more than
forty hours on their weekly timecards. Those employees also
testified that they were occasionally reprimanded when they did
report overtime and were told to alter their weekly timecards so
that no overtime hours would be included.
In its defense, The Monitor argued that its policy of ___________
discouraging overtime hours while paying those employees who did
in fact report them does not compel the conclusion that it was
willfully violating the FLSA. Rather, they contended that this
policy "illustrates the efforts of an employer trying to do the
right thing in the face of hopelessly outdated 40-year-old DOL
journalism interpretations which provide absolutely no guidance
regarding which journalists in a modern newsroom are exempt and
which are not." In support of this contention, The Monitor's ____________
editor-in-chief testified that he had never instructed anyone at
The Monitor to alter a timecard, and that The Monitor paid its ___________ ___________
employees for all reported overtime. The reporters also
____________________
Reich v. Newspapers of New England, Inc., 834 F. Supp. at 538-39. _____ _______________________________
-46-
testified that they would often work unreported overtime to
satisfy their own desire to produce high quality work and to
avoid the perception that they were slow writers.
Our scrutiny of the record convinces us that both
parties bulwarked their respective positions with tenable
arguments. Consequently, we cannot find the district court's
ruling to be clearly erroneous.19
III. Denial of the Injunction III. Denial of the Injunction
The Secretary also appeals the district court's refusal
to prospectively enjoin The Monitor from committing future FLSA ___________
violations. The FLSA authorizes the district courts to enjoin
violations of the overtime and recordkeeping provisions of the
Act. 29 U.S.C. 217. The issue of whether an injunction is an
appropriate remedial measure rests in the sound discretion of the
district court, and its decision on this matter will only be
disturbed on appeal where an abuse of discretion is shown.
Martin v. Coventry Fire Dist., 981 F.2d 1358, 1362 (1st Cir. ______ ____________________
1992) (citation omitted). In exercising its discretion, the
district court should weigh the finding of the violation
established at trial against the factors that indicate the
violations are not likely to recur, "such as intent to comply,
extraordinary efforts to prevent recurrence, absence of
repetitive violations, and absence of bad faith." Id. ___
____________________
19 Again, we find support from the Third Circuit's decision in
Reich v. Gateway Press, Inc., 13 F.3d at 702-03. Confronted with _____ ___________________
essentially the same facts as we now face, it refused to overrule
the district court's conclusion that the FLSA violations were not
willful. See id. ___ ___
-47-
Reviewing the record with these factors in mind leads
us to the inescapable conclusion that the district court did not
abuse its discretion in denying the injunction. The violations
at The Monitor were not the product of bad faith. Nor were they ___________
committed willfully. Rather, the violations can in part be
traced to the indeterminate status of the FLSA exemptions in the
field of journalism.20 Further, although The Monitor ____________
steadfastly insisted throughout the trial and appeal that the
majority of its journalists were exempt professionals, it
represented to the district court that it fully intended to
comply with requirements of the FLSA as clarified by the ultimate
judicial resolution of this case. In these circumstances, the
denial of the injunction was not an abuse of discretion.
____________________
20 The violations at issue were committed in the late 1970's,
long before the current case law began to clarify the issue.
-48-
IV. Denial of Post-investigation Damages IV. Denial of Post-investigation Damages
As discussed above, the Secretary sought to introduce
evidence and win back wages for FLSA violations that had
allegedly occurred after the DOL concluded its investigation at
The Monitor. The district court allowed the evidence pending a ___________
final ruling on admissibility. Ultimately, the court excluded
the evidence and refused to award monetary relief for any
violations alleged to have occurred after January 25, 1980,
approximately the last day of the period covered by the DOL
investigation. With regard to this determination, the court
stated:
The reason for this . . . limitation is
that, although plaintiff claims
"continuing" violations of FLSA, the case
was largely prepared by the defendants on
the ground that violations, if any, did
not continue beyond January 25, 1980.
The court, having taken the matter under
advisement, Tr. 1-43, 44, finds and rules
that it would be unjust and inequitable
to allow damages to be recovered for a
period beyond January 25, 1980.
Newspapers of New England, Inc., 834 F. Supp. at 539 (citing _________________________________
Donovan v. Burger King Corp., 672 F.2d 221, 229 (1st Cir. 1982)). _______ _________________
The Secretary argues that The Monitor was well aware ___________
that the complaint sought back wages for post-investigation
violations and that The Monitor had ample time before trial to ___________
conduct discovery pertinent to this issue. Therefore, the
Secretary contends, the district court's limitation of damages
was an abuse of discretion. We disagree. The record contains
ample support for the district court's determination that The ___
-49-
Monitor was unfairly surprised by the Secretary's attempt to _______
prove post-investigation violations at trial. Exhibit A attached
to the Secretary's complaint accurately detailed the amount of
back wages sought for each employee. Exhibit A did not indicate
that the claimed wages would be revised at trial to reflect post-
investigation violations.21 The Pre-trial Order's summary of
the Secretary's claims also did not reflect post-investigation
damages. Rather, the Pre-trial Order stated that damages sought
by the Secretary were only those contained in Exhibit A.
Furthermore, the DOL compliance officer in charge of the case
stated at his deposition that Exhibit A contained all the claims
being brought by the Secretary. Counsel for the DOL failed to
object to either the Pre-trial Order or the testimony of its
compliance officer. The district court apparently found that
this confluence of events led The Monitor to conduct its ____________
discovery on the reasonable belief that the Secretary did not
intend to pursue back wages for post-investigation
violations.22 We do not find this to be an abuse of
____________________
21 The fact that Exhibit A did not indicate that the Secretary
would seek damages for post-investigation violations is not
dispositive because the Secretary's complaint did aver that the
violations were ongoing.
22 After discovery closed, the Secretary sought to reopen
discovery to update its back wage computations so that they would
reflect post-investigation violations. Though the magistrate
judge hearing the motion ultimately denied it, the Secretary's
supporting arguments are enlightening:
The sole choice, therefore, for . . . the
Court is whether the pay practices at
issue are to be dealt with in one lawsuit
or in a series of lawsuits. It is
-50-
discretion.
Affirmed. ________
____________________
Plaintiff's position that resolution of
all back wage claims in a single
litigation would involve less expenditure
of time and money . . . . Plaintiff is,
however, fully prepared to file a second
lawsuit to protect its right to assert
its claims as to unpaid back wages for
the period January 26, 1980 to the
present.
Obviously, this motion notified The Monitor that the Secretary ___________
sought post-investigation damages. It is equally clear, however,
that the Secretary believed at the time that it would be forced
to file a second lawsuit to secure post-investigation damages if
the motion to reopen discovery was denied. The Secretary cannot
now prevail in arguing that the district court abused its
discretion by finding that The Monitor was understandably _____________
unprepared at trial to defend allegations of post-investigation
violations. The Secretary should have either filed a second
lawsuit or objected to the magistrate judge's denial of the
motion pursuant to Fed. R. Civ. P. 72(a). The fact that it did
neither may not be rectified on appeal.
-51-
Reference
- Status
- Published