In today’s environment of streaming competition, digital advertising pressure and escalating music licensing costs, every expense dollar matters. Broadcasters are often told that the answer is to “keep it local,” but local service and local content can increase staffing demands and operating costs.
Congress apparently recognized this tension decades ago when it created a narrow overtime exemption under the Fair Labor Standards Act (FLSA or Act) for certain employees of small-market radio and television stations.
While the Congressional floor debate on this particular provision was relatively brief compared with the broader 1961 FLSA amendments, the discussions repeatedly referenced:
- The economic fragility of small local stations;
- The need for employees to wear multiple hats; and
- The importance of preserving local broadcasting service in rural areas.
The exemption emerged from negotiations over expanding FLSA coverage generally while avoiding disproportionate burdens on small community broadcasters.
The exemption may allow a qualifying small-market broadcaster to require certain employees to work overtime without paying overtime compensation. However, this is a narrow exemption that applies only if both the station and employee satisfy very specific requirements.
Part 793 of the U.S. Department of Labor’s regulations implements Section 13(b)(9) of the FLSA by exempting certain radio and television station employees from the Act’s overtime pay requirements. However, the exemption is subject to strict conditions that limit its application to small-market broadcasters and specific categories of employees. Notably, the exemption applies only to the Act’s overtime provisions and does not exempt employers from complying with minimum wage requirements.
Covered job categories
To be eligible for the exemption, an employee must be employed by a radio or television station licensed by the Federal Communications Commission and fall within one of three enumerated job categories. In small-market stations, employees often perform multiple duties.
However, to qualify for the exemption, one of these listed occupations must be the employee’s primary duty. As a practical matter, the employee generally must spend more than half of the workweek performing the covered duties. The test is fact-specific and depends on what the employee actually does, not simply the job title.
The exemption applies to the following three job categories:
- Announcer — “An announcer is an employee who appears before the microphone or camera to introduce programs, read news announcements, present commercial messages, give station identification and time signals” and perform similar routine on-air functions.
At a small station, an announcer may also perform other duties. However, to qualify for the exemption, the employee must be primarily engaged in announcing duties or activities that are integral to those duties.
- News Editor — A news editor gathers, edits, rewrites, selects and prepares news items for broadcast. The employee may also present news on the air. To qualify, the employee must be primarily engaged in these news-editorial functions during the applicable workweek.
- Chief Engineer — A chief engineer’s primary duty is to supervise the operation, maintenance and repair of the station’s electronic equipment, including studio and transmitter equipment. Where a station has more than one engineer, only the employee who is actually in charge of the engineering work may qualify as the chief engineer. The title alone is not controlling.
Limits and challenges
The exemption applies only to employees, not independent contractors or shared-service providers.
Most challenges to the exemption focus on whether the employee was properly classified. For example, the exemption may fail if the employee’s actual duties are primarily sales, management, production, administrative, or general operations work rather than announcing, news editing, or chief engineering.
The exemption also may fail where an employee called the “chief engineer” is not actually in charge of the station’s engineering work.
Workweek-by-workweek analysis
The exemption is determined on a weekly basis.
A workweek is a fixed and regularly recurring period of seven consecutive 24-hour days. It may begin on any day and at any hour selected by the employer, but once established, it must remain consistent and may not be changed to evade the Act’s requirements.
If an employee performs a substantial amount of nonexempt work in a particular workweek, the employee may lose the exemption for that week.
Conversely, if the employee spends more than half of the hours worked in the covered occupation during that week, the employee may be considered primarily employed in that occupation for that workweek.
The small-market requirement
The employee must be employed by a radio or television station licensed by the FCC that qualifies as a small-market station. The test is based on the location of the station’s main or “major” studio, not the transmitter site.
For purposes of the exemption, the station’s “major studio” means the main studio designated on the station’s FCC license. The major studio must meet the station location requirement in order to qualify.
The exemption does not apply if the major studio is located in a city or town with a population exceeding 100,000. However, if the major studio is located in a city or town with a population of 100,000 or less and is not within a standard metropolitan statistical area (SMSA) that exceeds 100,000 population, the exemption may apply.
The exemption may also apply even within a larger metropolitan statistical area if the major studio is located in a city or town with a population of 25,000 or fewer, provided the community is at least 40 airline miles from the principal city of that area.
Conclusion
The Section 13(b)(9) broadcast overtime exemption can be useful, but it is narrow and must be applied carefully. It is limited to employees who are primarily employed as announcers, news editors, or chief engineers at qualifying small-market stations.
In modern broadcast operations, the exemption is often difficult to apply because of metropolitan market definitions, consolidated staffing, shared services, and mixed-duty job roles. Employers bear the burden of proving that the exemption applies, and misclassification challenges can defeat it.
Before relying on Part 793 to exempt any employee from overtime pay, a broadcaster should carefully review the employee’s actual duties, the station’s location, and the applicable workweek facts with legal counsel. A key resource is the Department of Labor’s Interpretive Bulletin.
This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.
