Updated: Federal Judge Blocks OT Rules That Could Have Affected Photojournalists

Update: On November 22, 2016, a federal judge blocked these overtime rules, issuing a preliminary injunction based on a likelihood of success on the merits that the overtime rule exceeds the Department of Labor's authority. This is not a final ruling but a preliminary finding that will block the new rule from going into effect only until the court makes a final ruling. To read more, see the Reuters report here

By Cassidy Daniels & Alicia Calzada

Photojournalists who are currently treated as exempt employees and earn between $23,660 and $47,476 per year may soon be entitled to overtime pay under a new regulation scheduled to take effect December 1, 2016.

Generally, an employee must be paid for every hour he or she works, plus “time-and-a-half” for every hour worked past 40 in each week. The Department of Labor permits employers to classify some photographers and journalists as exempt from this overtime requirement under the “creative professionals” exemption.

An employee whose primary duty is the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor and who earns at least $455 per week may be considered an exempt creative professional who is not entitled to overtime pay. However, this minimum salary level required for the exemption will more than double on December 1st. Then, in order to qualify as an exempt creative professional, a photojournalist must earn at least $913 per week (or $47,476 annually). Full-time photojournalists who earn less than $913 per week will be entitled to mandatory overtime pay.

This increase might affect the way newly non-exempt photojournalists work. For example, non-exempt photojournalists may find themselves in the murky situation of navigating special projects completed wholly or partially on their own time. A non-exempt employee working overtime on a project requested by the employer must be paid for each hour of overtime, and uncompensated work could be a violation of the overtime rules. However, a photojournalist who takes on a special project on her own initiative and on her own time, without prior approval from the employer, may be working outside of the scope of the employment relationship, and thus not entitled to overtime pay. Questions may arise if the employer later decides to publish or broadcast the project. On the other hand, the employer’s policies may limit the ability of an employee to license such a project to other news outlets.

A photojournalist who is unsure about the scope of his or her employment, restrictions on “moonlighting,” or how he or she should be paid for a project should look to the employee handbook for the applicable policies. It is also important to discuss all potential projects with the employer in advance and come to an agreement about who owns the rights and how the work will be compensated.

Many state officials and business groups, including the National Association of Broadcasters (NAB) and the National Newspaper Association (NNA), object to the new rule and hope to prevent it from taking effect on December 1st. NAB and NNA, along with many trade organizations, support legislation authored by Senator Lamar Alexander (R-Tennessee), which would implement a more moderate increase of the salary threshold—to $692 per week ($36,000 per year)—and exempt certain organizations, including non-profits and universities, from future increases.

In order to comply with the new rule as it is currently written, an employer may:

– Ensure that an employee is exempt by increasing his or her salary to at least $913/week.

– Pay a non-exempt employee who earns less than $913/week time-and-a-half for every hour worked over 40 in each week.

– Reduce or eliminate overtime hours.

The Department of Labor plans to update the minimum salary levels every three years to maintain comparable levels based on national salary data. The first update will occur on January 1, 2020.

Additional information about overtime pay can be found here: https://www.dol.gov/whd/overtime/final2016/, or by contacting the Department of Labor’s Wage and Hour Division at 1-866-487-9243 or your human resources department.

Cassidy Daniels is an associate practicing litigation and media law at Haynes and Boone, LLP. Alicia Calzada is an also an associate practicing media law at Haynes and Boone, LLP. Calzada is also a past NPPA President and the chair of NPPA’s Advocacy Committee, and serves as an attorney for the organization.