Is news reporting creative? No, says U.S. government

Newsroom

NewsroomAmidst shrinking budgets and the threat of layoffs or buyouts, newspaper staffers across the country are scrambling to meet deadlines and fill pages using fewer and fewer resources. Many reporters are entitled to overtime pay when they exceed 40 hours of work in a week, according to the Fair Labor Standards Act, but actually getting paid for overtime is another story as the recent TribLocal settlement illustrates (more on that below).

“Media companies are some of the worst abusers of the Fair Labor Standards Act,” says Donna Ballman, a Fort Lauderdale, Fla. labor attorney and author of Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards.

Lawsuits: Covering a school board does not take creativity

Often, media companies argue the “creative” exemption, which exempts from overtime journalists whose primary duties require invention, imagination, originality or talent over manual or physical work.

However, that approach didn’t work for the Chinese Daily News, a Chinese-language daily newspaper based in Los Angeles and New York.

In 2010, the Ninth U.S. Circuit Court of Appeals in San Francisco upheld an order for the company to pay $5.2 million ($3.5 million in damages and penalties plus more than $1.5 million in interest) to nearly 200 current and former employees including reporters, advertising sales staffers, and hourly employees. In that case, the judge ruled that CDN’s reporters were not exempt from overtime, citing the Department of Labor (DOL) regulation that reporters “who simply collect and organize information that is already public, or do not contribute a unique or creative interpretation or analysis to a news product, are not likely to be exempt.”

More recently, the case against CDN was sent back to court over whether the case was properly classified as a class-action lawsuit. “If the class is thrown out, reporters might have to bring cases individually,” explains Ballman. “It doesn’t mean the exemption changes at all. Most reporters must still be paid overtime.”

Earlier this year, the Chicago Tribune settled a $660,000 class-action lawsuit over unpaid overtime with 46 TribLocal reporters. The employment lawyer who filed suit on behalf of the reporters argued that the reporters were not exempt from overtime because they did hard news, mainly covering school board and municipal meetings, which did not meet the DOL’s criteria for exempting creative employees.

New York and New Jersey employment lawyer Alix Rubin explains that when “a reporter’s job is to cover municipal council meetings, perhaps rewrite press releases and follow up on other types of stories in those communities, that’s pretty routine news. They’re probably not going to be exempt, but somebody who writes editorials and does big investigative stories probably would be exempt.”

In addition to performing creative or inventive work at least 50 percent of the time, reporters must make at least $455 per week to be exempted from overtime pay. The $455 per week threshold was set by the DOL in 2004, when it revamped overtime rules for the first time in over 50 years; that amount does not adjust for inflation and has not been updated since 2004, so it inevitably includes a larger portion of the journalism work force. Workers paid by the hour are not considered creative.

The new newsroom blurs the line

With newspaper staffs shrinking and more journalists being asked to take on more administrative, clerical or otherwise uncreative tasks, the distinction between creative and non-creative roles is getting murkier. “Employees may have started out as exempt, but as time goes on, people take on more duties and those duties may not be as creative,” explains Michelle Lee Flores, who focuses on employment litigation as a partner in the Los Angeles office of Fisher & Phillips. “It is not an easy analysis by any stretch of the imagination and that’s where these lawsuits come from.”

Issues with overtime pay can also arise because the 24/7 news cycle doesn’t neatly fit the traditional 9 to 5 workday. When reporters go to cover breaking news, they may feel pressure to exclude those extra hours from their timesheet if they didn’t get approval for overtime hours and want to avoid disciplinary action for going over their hours. “If the culture in the company is not to record it, then it’s not gonna get recorded,” says Rubin. “That shouldn’t be happening, but I think it does. It’s hard in this industry when employees are discouraged from recording their hours over the allotment.”

Of course, as smartphones and tablets create expectations of 24/7 connectivity, the overtime problem arises in other industries, too. A recent New York Times article about young people working around the clock mentions the term 22-22-22, meaning a 22-year-old willing to work 22 hours a day and earn just $22,000 a year (presumably without overtime but glad to be employed at all).

While some reporters may take issue with their work being classified as “uncreative,” Ballman points out that taking creativity or invention to extremes can get them into hot water. “If they’re engaging in invention and imagination, then they’re probably doing something wrong, so that’s why they’re not in this classification,” she says. “For the most part, most journalists are not gonna be exempt and that’s a good thing, not a bad thing.”

 Flickr photo courtesy of charlesdyer

Bloggers v. Journalists: Why it Matters and How to Avoid a Lawsuit

judge rules on bloggers

Bloggers who consider themselves the “citizen journalists of the internet” are still stinging from the slapdown issued last month by an Oregon judge who ruled that “bloggers are not journalists.”

Crystal Cox, who labeled herself “an investigative blogger,” lost a $2.5 million defamation lawsuit filed by an Oregon lawyer she described online as “a thug, thief, and a liar.” In her blog, she cited anonymous sources and claimed in court that the Oregon shield law protected her from having to reveal their identities.

Even if she had been shielded by the Oregon law, she would have faced civil penalties for making statements judged to be defamatory.

The ruling has stirred the embers of a nagging debate over whether a federal shield law is needed and who should be included. The District of Columbia and 39 states have a patchwork of varying shield laws in place, but most, like Oregon’s, don’t apply to bloggers. A 2009 move to adopt a federal shield law collapsed because the House and Senate failed to reach a consensus on the question of who deserves protection.

Al Tompkins, who teaches online and broadcast journalism at the non-profit St. Petersburg, Fla.-based Poynter Institute, says he “has never been a fan” of shield laws because “they force us to make decisions about who is going to be shielded and why, and how to regulate those people who are going to be given special protection.” Tompkins also is a Peabody and Emmy award-winner and a final juror for the duPont-Columbia Journalism Awards.

“Over time, some of the most important stories of the last 60 or 60 years have been enriched by people who are not credentialed journalists,” he says, citing the Zapruder home movie documenting the JFK assassination, earthquake coverage in Haiti, and post-tsunami accounts from Japan.

However, without a system for licensing journalists, Tompkins asks, “how are we to differentiate who is deserving of protection?”

He also believes that journalists  and web content writers give confidential status to sources too easily, explaining that “at Poynter, we strongly advise that confidentiality is used sparingly and only as a last resort” with the following caveats:

  1. The source must have firsthand knowledge that the information is true
  2. The journalist must explain why the source cannot be identified
  3. The journalist must be able to prove the story is true, independent of the source
  4. The journalist should not use confidential sources to level personal attacks at another person

All these factors applied in the Oregon case, says Tompkins. “The reason we don’t like to use confidential sources is that it deprives the public from knowing how we know what we know.”

In recent years, he has seen reporters brought into court and before grand juries “far too often, when prosecutors take the easy way out because of lack of time or ambition, attempting to force journalists to turn over sources with information the prosecutors could discover on their own.”

“It’s not without cost,” he adds. “These subpoenas have to go to your company attorney, who charges you by the hour.”

His greater concern is that journalists will be less willing to seek out sources who could be controversial, fearing they will face jail if they don’t reveal their identities. Journalists need to carefully negotiate their agreements with confidential sources ahead of time, he advises, adding that “many journalists say ‘I’ll defend you, but you need to come forward if it goes to court. I won’t go to jail for you.’ ”

The judicial ruling in the Cox case included a list of standards journalists should uphold, including:

  • Adhering to journalistic standards such as fact-checking and the disclosure of conflicts-of-interest
  • Creating an independent product rather than assembling the writings and postings of others
  • Contacting the other side to get both sides of a story

“I am in the business of independent verification,” Poynter’s Tompkins adds. “Bloggers often seek out people with whom they agree. But journalists have an obligation to seek out opinions that others, including the journalist, may be opposed to.”

“Seek many truths, and report that truth as fully as possible.”

Image courtesy of Salvatore Vuono / FreeDigitalPhotos.net

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