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SHERWOOD v. WASHINGTON POST

January 13, 1988

Thomas R. Sherwood, et al., Plaintiffs,
v.
The Washington Post, Defendant


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, United States District Judge

 Ninety-nine plaintiffs including reporters, editors or photographers presently employed by The Washington Post ("Post") have invoked Section 13(a)(1) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 213(a)(1) (1982), claiming they have been improperly denied time and a half pay for their overtime work. The Court has before it elaborately documented cross-motions for summary judgment limited to those plaintiffs who are reporters/editors. The motions concern whether or not members of this particular group of plaintiffs are exempt from the FLSA because they are professionals within the meaning of that Act. This issue has been fully briefed and argued.

 Introduction

 The complaint, demanding jury trial for each plaintiff, was filed October 1, 1986. Although it presently combines 99 separate claims for relief under the FLSA, it does not purport to be, nor is it, in fact, a class action. After comments by the Court, it became apparent to counsel on both sides that some adjustments were necessary to fashion a suit that would bring the underlying legal issue into sharp focus. Plaintiffs dropped their demand for jury trial and agreed to defer damage claims pending resolution of their entitlement to time and a half pay for overtime work. It was then stipulated that depositions of individual plaintiffs, supplemented by more general discovery, would be limited to a representative group of 20, 10 to be selected by counsel on each side. The stipulation further provided that upon completion of discovery the overtime entitlement issues would be presented to the Court for resolution through separate cross-motions for summary judgment relating to reporters/editors and to photographers, respectively.

 As a result of these arrangements a detailed record has been developed to support the motions. Thirteen reporter/editor plaintiffs were deposed, *fn1" lengthy depositions were also taken from Benjamin Bradlee and Leonard Downie, Jr., the Executive Editor and the Managing Editor of the Post, respectively, and these depositions have been supplemented by affidavits and other relevant materials.

 The Issue

 Under longstanding practice, periodically re-examined in collective bargaining agreements, The Washington Post since 1945 has paid time and a half wages for overtime work to all reporters/editors earning a salary of less than a stated amount per week. *fn2" This complaint was filed after the last collectively bargained agreement failed to be renewed and negotiations for renewal had come to an apparent stalemate. There are 236 reporters and 160 editors who work full time out of the paper's Washington, D.C. newsroom. The approximately 60 reporters/editors who are plaintiffs earned an average of $ 50,000 per year with annual salaries ranging from $ 30,000 up to $ 60,000 at time of suit. Under the newspaper's system of compensation, few reporters/editors fall below the overtime cutoff wage and receive time and a half pay.

 The FLSA provides an exemption from the Act's overtime pay requirements for employees working in a "bona fide executive, administrative or professional capacity." 29 U.S.C. § 213(a)(1). The individual plaintiffs each deny he or she is a professional within the meaning of this overtime exemption. Since they frequently gather information, write or edit outside the paper's 9:00 a.m. to 6:00 p.m. hours, they seek to be paid time and a half wages for this work regardless of the amount of salary received or any arrangement included in a collectively bargained agreement. *fn3"

 The Washington Post contends that all of its reporters/editors, including the plaintiffs, are professionals within the meaning of the FLSA and therefore are exempt from the Act's time and a half overtime pay requirement. More specifically, it urges that the reporter/editor plaintiffs should be recognized as journalistic writers whose principal duty is to develop and write "original and creative" material and that, as such, they must be treated as members of an artistic profession within the meaning of the Department of Labor regulations found at 29 C.F.R. § 541.303 (1987) and other relevant interpretations of the FLSA. The Post has the burden of proof on this issue.

 Upon receiving the motion papers it was apparent to the Court that the motions did not provide a proper vehicle for resolving this exemption issue for each reporter/editor plaintiff named in the complaint since a series of individualized determinations would be required and only a few plaintiffs in this category had been deposed. After expressing this view at oral argument, counsel for both parties strongly urged the Court to at least rule on the exemption issue as to any reporter/editor deposed where, after further review of the record, the Court was able to determine that the material facts necessary for resolution of the professional exemption issue were not in dispute. The Court has since concluded it can and should resolve the 13 cases presented after individual depositions were taken.

 The Facts

 (a) The Washington Post

 The Washington Post is not an entry-level employer of reporters/editors. It employs only reporters and editors with proven experience who have acquired demonstrable newspaper writing skills that meet the particular, exacting needs of the Post. The paper does not rely heavily on other news services. Once hired, its reporters/editors may be based at a desk located in its newsroom or at the Capitol or at city hall, or at a Washington Post bureau in Maryland or Virginia, or sent to locations in South America, Central America, the Far East, Africa or Europe, as well as throughout the United States. Management desires to meet the highest ethical standards that have been developed by journalism societies and teachers. Ample financial and advertising resources exist to support a successful, thorough newspaper venture utilizing computer systems and other modern communication and production technology and providing its reporters/editors with expense accounts and backup support personnel. The Washington Post has used its resources freely to maintain ...


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