An opinion issued last month by the Ninth Circuit suggests that it will narrowly define the scope of the "creative professional" exemption to the Fair Labor Standards Act (FLSA). In Wang v. Chinese Daily News, the Court affirmed a ruling in favor of the reporters of a local Chinese language newspaper who sued their employer for unpaid overtime and meal and rest break wages, concluding that the reporters did not satisfy the criteria for an overtime exemption under federal or California law.

In reaching its conclusion, the Ninth Circuit focused on the Department of Labor's regulation addressing the "creative professional" exemption. That regulation distinguishes between work requiring "invention, imagination, originality or talent" from work which depends primarily on "intelligence, diligence and accuracy." 29 C.F.R. § 541.302(d). With these distinctions in mind, the court explained that the primary duties of the plaintiff reporters in this case related to the recounting of public information as opposed to independent analysis. The court noted that the defendant's newspaper articles lacked the sophistication of the national papers, and that the intense pace at which the defendant's reporters worked precluded them from engaging in sophisticated analysis. It further noted that the managing editors maintained significant control over the paper's content. The Court concluded by emphasizing that the "creative professional" exemption was to be construed narrowly and that the majority of journalists are not likely to fall within its scope.

Employers should be cautious in deciding whether any of their employees are exempt from overtime pay under the "creative professional" exemption, which has been narrowly construed by the courts. The decision also emphasizes that it is the employer's burden to prove that any employees classified as creative professionals are engaged in work that primarily requires "invention, imagination, originality or talent" and not simply "intelligence, diligence and accuracy."