In Opinion Letter FLSA2021-7, the second of four opinion letters released today, the U.S. Department of Labor clarified that journalists – no matter whether they work for a major newspaper or small-town community paper – may qualify for the creative professional exemption. In order to qualify, journalists must have a primary duty that requires, “invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.” 29 C.F.R. 541.300(a)(2)(ii). Referencing Encino Motocars, LLC v. Navarro, 138 S. Ct. 1134 (2018), the DOL noted that it no longer reads the FLSA’s exemption strictly, as the Supreme Court has made it clear that is an incorrect reading. In short, while the opinion letter goes through the history of this exemption for journalists (including the DOL’s historical view that the majority of journalists were non-exempt), the takeaway is that, the DOL has confirmed that any journalist may qualify, no matter the circulation, so long as they meet the salary level, primary duties test, and whose work product is not subject to the employer’s substantial control.
