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FLSA exempt status determinations remain in limbo as newspapers head into 2020 budget season

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As you may be aware, the U. S. Department of Labor’s recent efforts to increase the minimum salary threshold required for most exemptions to federal overtime pay remain in a state

of limbo

The minimum salary requirement is one of three requirements a newspaper must meet to treat an employee as exempt from the wage and hour overtime requirements if they are supervisors, managers or professionals.

The salary level increase is significant, because if it is not met, a newspaper must treat the employee as subject to all related record-keeping provisions applicable to nonexempt employees, including recording daily time worked by employees to the nearest quarter hour and providing compensation based on those hours worked. Overtime, at time and one half a nonexempt employee’s hourly rate, must be paid for all hours worked over 40 in a workweek. There are certain rare exceptions to this salary requirement for outside sales employees, and computer professionals who earn a high hourly rate.

It is critical for newspapers that operate in rural, suburban, and urban areas to review these requirements to ensure compliance with applicable changing rules. Two areas of uncertainty are worth watching as we close out FY 2019 and consider labor budgeting for 2020: the minimum required salary level and artistic professional exemption for newspaper journalists.

Minimum required salary

The current salary threshold is $455/week (or $23,660 annually). The rule the department proposed in 2016—which would have increased that salary level to $913/week (or $47,476 annually)—met significant challenges both from interested parties, and the courts. The proposal was ultimately enjoined by a federal district court. Subsequently, new proposed regulations were promulgated by the current administration which set forth a minimum salary level of $679 per week. This level was based upon an empirical study and is aimed at establishing a rational level applicable across United States.

The new level, however, has not become effective as a final regulation as yet, which creates uncertainty for employers. We will be providing you with updates as to the status of the regulation and its finalization and effective date when it is available.

Artistic professional exemption for journalists

The current interpretive regulations governing the professional exemption as applied to journalists at print newspapers have remained unchanged for well over a decade. This situation has occurred notwithstanding dramatic changes in the industry and in the duties and responsibilities exercised by journalists in the present technology-driven social media environment. The environment requires journalists to become increasingly more creative and original in columns and news reports.

Thus, the current regulatory view of journalists leaves uncertainty as to whether work performed today which is not really addressed in the department’s existing regulations would apply—and if so how. Job duties and job descriptions must be analyzed to be sure that they accurately represent today’s environment. Hopefully, changes are coming down the road and we intend to provide you with updates as further guidance is provided.

Camille Olson is a partner of Seyfarth Shaw LLP, co-chair of its National Complex Litigation Practice Group, and national chairperson of its Complex Discrimination Litigation Practice Group. For more than 30 years, she has represented companies nationwide in all areas of litigation, with emphasis on employment discrimination and harassment, wage and hour matters, and independent contractor status.

Edward W. Bergmann is a partner in the Chicago office of Seyfarth Shaw LLP who represents both private and public sector clients with respect to labor and personnel relations, collective bargaining, EEO/affirmative action matters and Fair Labor Standards Act matters.