Secretary United v. Newspapers
Case Date: 02/03/1995
Court: United States Court of Appeals
Docket No: 94-1032
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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 |