Under the Fair Labor Standards Act (FLSA) and New York State Labor Law, employees who work more than forty (40) hours in a workweek are entitled to overtime pay unless they are considered exempt. An employee is considered exempt if they are paid a salary AND their duties satisfy the tests for a bona fide executive, administrative, or professional employee. The professional exemption generally includes employees who are engaged in “creative” work. In most situations, this would likely include employees engaged as writers.
However, in Tornatore v. GCI Communications,14-cv-6049, Judge Charles Siragusa of the Western District of New York, certified a class of employees, who were called “writers,” in a lawsuit alleging that they were entitled to overtime pay. Tornatore reminds us that the title given to an employee means little where the actual skills and duties of the employees do not satisfy a recognized exemption. According to the complaint, although the employees were given the title of “writer,” their actual duties involved communicating with customers, proof writing and editing, which do not rise to the level of artistic or creative professional work required by the Creative Professional exemption. To be covered as a Creative Professional, the employee must be compensated on a salary or fee basis at a rate not less than $455 per week, and the employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. Because, the plaintiffs argued, they did not perform the type of duties required to be exempt, they should have been paid overtime for all hours worked over 40 in a workweek.