Earlier this month, a writer for the legal blog FindLaw, filed a class action lawsuit alleging that Thomson Reuters Corp. and Adecco failed to pay writers for overtime and meal breaks in violation of California state law. Adecco is a staffing and service agency that hires and assigns workers to Thompson Reuters’ Sunnyvale, California office.
The plaintiff, Jason Beahm, alleges that writers assigned to Thompson Reuters were required to produce a minimum of eight stories a day, and were paid a set amount no matter how many hours were spent to meet this quota. Counsel for plaintiff has stated that plaintiff’s supervisors “basically told him to put down 40 hours” for each week regardless of the number of hours worked. The case is entitled Beahm v. Adecco, and was filed in the Superior Court of California.
This lawsuit will likely hinge on whether Beahm constitutes a “creative professional” under California’s wage and hour law. Similar to the Fair Labor Standards Act, California exempts from overtime individuals whose primary duty is the performance of work requiring imagination, originality, or talent in a recognized field of art or creativity. An employee will not qualify for this exemption if his or her work depends on intelligence, diligence and accuracy rather than creativity.
Typically, writers for newspapers, magazines, and other media are not exempt as “creative professionals” if they only collect, organize and record information that is already public. For this reason, the Ninth Circuit has held reporters to be non-exempt employees.
In contrast, writers may qualify as “creative professionals” if they analyze or interpret public events, write editorials or opinion columns, or contribute a unique interpretation to a newsworthy event.
Based on the very subjective nature of the “creative professional” exemption, employers should consider taking the advice provided in the federal regulations, and designate writers as exempt or non exempt on a “case by case basis.” Employers should be aware, however, that there are no points for “style” in these matters.