Court Rules Journalists Are Professionals
Hernandez, Debra Gersh, Editor & Publisher
JOURNALISTS MAY NOT be professionals in New Hampshire, but they are in the District of Columbia -- at least, as far as the courts are concerned.
Ruling on a 1986 lawsuit, U.S. District Court Judge Norma Holloway Johnson found that former Washington Post reporter Tom Sherwood was not entitled to overtime pay, because journalists are considered artistic professionals who are exempt from the overtime provisions of the Fair Labor Standards Act.
"I was surprised and disappointed," Sherwood said.
"Newspapers, and the Washington Post in particular, should not hold themselves up to be supernova centers of journalism," he said, noting that journalists are often criticized for being elitist. "Editors who think reporters should be above labor laws are not good for business. They insist on characterizing us as not being factory workers, not punching a clock.
"That's not our position. We say reporters are skilled people who do demanding jobs and ought to be paid. Calling us artistic professionals actually distorts our job. Principally, we are information-gatherers, and then we write stories."
Johnson's decision is opposite that of the U.S. District Court in Concord, N.H., which found that reporters and photographers for the Concord Monitor were not professionals under the law and were owed $21,000 in compensation (E&P, Nov. 13, 1993).
The Newspaper Association of America, National Newspaper Association, American Society of Newspaper Editors and National Association of Broadcasters filed a friend-of-the-court brief with the U.S. Court of Appeals for the First Circuit in support of the Monitor, arguing that reporters should be considered professionals. That appeals decision is pending.
Johnson's decision in the U.S. District Court for the District of Columbia mirrors many of the arguments posed by the associations' amici curiae brief in the Monitor case.
That may be because Washington attorney John G. Kester of Williams & Connolly represented the associations and the Post in their respective cases.
Kester noted that the "opinion of the District Court in the Monitor case was vastly different" from that in the Post case.
"If you look at the Monitor opinion in the District Court, it turns out there's only about half [a page] or a page that talks about [reporters'] duties at the Monitor. It has some discussion about the judge's view of the quality of stories, but it does not say what [reporters] have to do all day. It's a very abbreviated ... discussion of [their] work there," he said.
"We argued that was inadequate. The judge has to analyze in some detail what the duties are," Kester explained.
Johnson's 26-page opinion went into great detail about the duties of a reporter at the Post, citing trial testimony from a number of editors.
Kester said the Monitor case already has been argued before the 1st Circuit appeals court, but he could not predict how much, if any, weight the D.C. Circuit opinion would have.
"A District Court opinion is not binding [in another district]," he said. "They could give it whatever weight they think is appropriate. Some of the arguments we made in the Monitor case are the same as the [judge in the] Sherwood case accepted. That's a good sign. There's a lot of similarity. The core issue is the same."
In her opinion, Johnson stated that the Post "is not liable to Sherwood for overtime pay because Sherwood's primary duty as a reporter consisted of the performance of work requiring invention, imagination and talent."
The job today differs from the "legmen" of the 1940s, who simply gathered facts that were then put together in story form by "rewrite men," Johnson noted, adding that because of these changes, 1949 Labor Department interpretations of journalists' status "should be accorded very little weight. …