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Part 793—Exemption of Certain Radio and Television Station Em

ployees From Overtime Pay Requirements Under Section 13(b) (9) of the Fair Labor Standards Act

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INTRODUCTORY

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Sec. 793.0 793.1 793.2

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Purpose of interpretative bulletin. Reliance upon interpretations. General explanatory statement.

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REQUIREMENTS FOR EXEMPTION

Sec.
793.12 Related and incidental work.
793.13 Limitation on related and incidental work.
793.14 Employed by.
793.15 Duties away from the station.
793.16 "Radio or television station."
793.17 “Major studio."
793.18 Location of "major studio".

WORKWEEK APPLICATION OF EXEMPTION 793.19 Workweek is used in applying the exemption. 793.20 Exclusive engagement in exempt work. 793.21 Exempt and nonexempt work.

AUTHORITY: Sections 793.0 to 793.21 issued under secs. 1-19, 52 Stat. 1060, as amended ; 75 Stat. 65; 29 U.S.C. 201219.

SOURCE: Sections 793.0 to 793.21 appear at 26 F.R. 10275, Nov. 2, 1961.

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793.3 Statutory provision. 793.4 General requirements for exemption. 793.5 What determines application of the exemption. 793.6 Exemption limited to employees in named occu

pations. 793.7 "Announcer." 793.8 "News editor." 793.9 "Chief engineer." 793.10 Primary employment in named occupations. 793.11 Combination announcer, news editor and chief

engineer.

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INTRODUCTORY

limited classification of employees employed by small market radio and television stations whose employment meets the requirements for the exemption. These requirements and their meaning and application are discussed in this bulletin.

REQUIREMENTS FOR EXEMPTION

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3(b) (9)

Section 793.0 PURPOSE OF INTERPRE

TATIVE BULLETIN This Part 793 constitutes the official interpretative bulletin of the Department of Labor with respect to the meaning and application of section 13(b) (9) of the Fair Labor Standards Act of 1938, as amended. This section provides an exemption from the overtime pay provisions of the Act for certain employees employed by certain small market radio and television stations. This exemption was added to the Act by the 1961 amendments. It is the purpose of this bulletin to make available in one place the interpretations of the provisions in section 13(b) (9) which will guide the Secretary of Labor and the Administrator in the performance of their duties under the Act unless and until they are otherwise directed by authoritative decisions of the courts or conclude, upon re-examination of an interpretation, that it is incorrect. Section 793.1 RELIANCE UPON INTER

PRETATIONS The interpretations of the law contained in this part are official interpretations which may be relied upon as provided in section 10 of the Portalto-Portal Act of 1947. All prior opinions, rulings and interpretations which are inconsistent with the interpretations in this bulletin are rescinded and withdrawn.

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Section 793.3 STATUTORY PROVISION

Section 13(b) (9) of the Act exempts from the overtime requirements of section 7, but not from the minimum wage provisions of section 6, of the Act: any employee employed as an announcer, news editor, or chief engineer by a radio or television station the major studio of which is located (A) in a city or town of one hundred thousand population or less, according to the latest available decennial census figures as compiled by the Bureau of the Census, except where such city or town is part of a standard metropolitan statistical area, as defined and designated by the Bureau of the Budget, which has a total population in excess of one hundred thousand, or (B) in a city or town of twenty-five thousand population or less, which is part of such an area but is at least 40 airline miles from the principal city in such area. Section 793.4 GENERAL REQUIREMENTS

FOR EXEMPTION All of the following requirements must be met in order that an employee may be exempt under section 13(b) (9):

(a) The employee must be "employed as” an announcer, or a news editor, or a chief engineer.

(b) The employee must be employed “by” a radio or television station.

(c) The major studio of such radio or television station must be located in a city or town which meets the prescribed population and locality tests. Section 793.5 WHAT DETERMINES AP

PLICATION OF THE EXEMPTION The exemption applies only to an employee who is "employed as” an announcer, news editor, or chief engineer, under the conditions specified in section 13(b) (9). Although the nature of the employer's business is important in applying the exemption to a particular employee in one of the named occupations, employment in the named occupation is an essential prerequisite for exemption. Whether an employee is exempt therefore depends upon an examination of his duties as well as the nature of the employer's activities. Some em

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Section 793.2 GENERAL EXPLANATORY

STATEMENT Some employees of radio and television stations perform work which may be exempt from the minimum wage and overtime requirements under section 13(a)(1) of the Act. The 13(a) (1) exemption applies to employees employed in a bona fide executive, administrative or professional capacity, or in the capacity of outside salesman, as these terms are defined and delimited by regulations of the Secretary. This exemption continues to be available for employees of radio and television stations who meet the requirements for exemption specified in Part 541 of this chapter. The section 13(b) (9) exemption, which is an exemption from the overtime provisions of the Act, but not from the minimum wage requirements, applies to a

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ployees of the employer may be exempt and others news on the air. An employee who is primarily

engaged in the above duties and in activities which

are an integral part thereof will be considered to Section 793.6 EXEMPTION LIMITED TO

be employed as a news editor within the meaning EMPLOYEES IN NAMED OCCUPA

of the exemption in section 13(b) (9). TIONS

Section 793.9"CHIEF ENGINEER" The legislative history of section 13(b) (9) makes it clear that the exemption is specifically A chief engineer is an employee who primarily limited to employees employed in the specified oc supervises the operation, maintenance and repair cupations (S. Rept. 145, 87th Cong., 1st sess., p. of all electronic equipment in the studio and at 37). To be exempt, therefore, an employee must the transmitter and is licensed by the Federal be employed in the named occupations of an Communications Commission as a Radio Telenouncer, a news editor, or a chief engineer. In phone Operator First Class. In small stations, applying this test to an employee, his title or job only one such engineer may be employed, and in description is not determinative. His aggregate some cases he may be assisted by part-time workduties, as evidenced by the work which he actually ers from other departments. The engineer in such performs in his everyday activities, determines the cases will be regarded as employed as the "chief nature of his occupation. The employee's duties, engineer" for purposes of the section 13(b) (9) taken as a whole, must characterize the occupa exemption provided that he performs the duties tion of the employee as that of announcer, news described above and is properly licensed by the editor, or chief engineer, if the statutory require Federal Communications Commission. Where ment that he bo "employed as” such an employee two or more engineers are employed by a station, is to be satisfied (see Walling v. Haden, 153 F. 2d only one may qualify as "chief engineer”--that 196, cert. denied 328 U.S. 866). This exemption one who, on the basis of the factual situation, is does not apply to employees who are employed in charge of the engineering work. in occupations other than those of announcer, news

Section 793.10 PRIMARY EMPLOYMENT editor, or chief engineer.

IN NAMED OCCUPATIONS Section 793.7 “ANNOUNCER”

The legislative history of the exemption is exAn announcer is an employee who appears be plicit that the exemption applies only to an emfore the microphone or camera to introduce pro ployee who is employed “primarily” as an angrams, read news announcements, present com nouncer, news editor, or chief engineer. Thus the mercial messages, give station identification and Senate Report states: “The exemption is specifitime signals, and present other similar routine on cally limited to those employees who are employed the-air material. In small stations, an announcer primarily in the named occupations

(S. may, in addition to these duties, operate the studio Rept. 145, 87th Cong., 1st sess., p. 37). No specific control board, give cues to the control room for rule can be established for determining whether switching programs, make recordings, make the in any given case an employee is employed “prinecessary preparations for the day's programs, marily” in the named occupations. Generally, play records, or write advertising, promotional or however, where an employee spends more thau similar type copy. An employee who is primarily

half of the hours he works in a workweek in a engaged in the above described activities and in named occupation, he will be considered to be activities which are an integral part thereof will primarily employed in such occupation during be considered to be employed as an announcer

that workweek. The answer will necessarily dewithin the meaning of the exemption in section pend upon the facts in each case. 13(b) (9).

Section 793.11 COMBINATION AN. Section 793.8 "NEWS EDITOR"

NOUNCER, NEWS EDITOR AND A news editor is an employee who gathers, edits

CHIEF ENGINEER and rewrites the news. He may also select and The 13(b) (9) exemption, as was made clear prepare news items for broadcast and present the during the debate on the amendment, is intended

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selling. Selling would in such circumstances be his primary occupation. His duties as an announcer must constitute his primary job. Another requirement is that the work of the employees must be performed "for the broadcasting company by which they are employed ***" (see S. Rept. cited in section 793.12). Sale of broadcasting time for a company which does not employ the employee as an announcer, news editor, or chief engineer, is not exempt work. Work which is not performed for the station by which the employee is employed, is not intended to be exempt. For a discussion of the effect on the exemption of nonexempt work see sections 793.19 to 793.21.

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to apply to employees employed in the named oc-
cupations by small market radio and television
stations. It was known at the time of such debate
that these stations employ only a small number of
employees and that, at times, an employee of such
a station may perform a variety of duties in con-
nection with the operation of the station. For ex-
ample, an employee may perform work both as an
announcer and as a news editor. In such cases,
the primary employment test under the section
13(b) (9) exemption will be considered to be met
by an employee who is employed primarily in any
one or any combination of the named occupations.
Thus an employee who works both as an announcer
and news editor for the greater part of the work-
week will be considered to be primarily employed
in the named occupations during that week.
Section 793.12 RELATED AND INCIDEN-

TAL WORK
An employee who is employed primarily in one
or more of the named occupations may also en-
gage in other duties pertaining to the operation
of the station by which he is employed. The Sen-
ate Report states that, for purposes of this exemp-
tion, employees who are primarily employed in
the named occupation "may engage in related ac-
tivities, including the sale of broadcasting time
for the broadcasting company by which they are
employed, as an incident to their principal occu-
pation", (S. Rept. 145, 87th Cong., 1st sess., p. 37).
Time spent in such duties will not be considered
to defeat the exemption if the employee is primar-
ily employed in the named occupations and if the
other requirements of the exemption are met.
Section 793.13 LIMITATION ON RELATED

AND INCIDENTAL WORK
The related work which an employee may per-
form is clearly limited in nature and extent by a
number of requirements. One limitation is that
the work must be an incident to the employee's
primary occupation. The work therefore may not
predominate over his primary job. He is not "em-
ployed as” an announcer, news editor, or chief en-
gineer if his dominant employment is in work out-
side such occupations (see Walling v. Haden, 153
F.2d 196, cert. denied 328 U.S. 866). For instance,

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Section 793.14 EMPLOYED BY

The application of the exemption is limited to employees "employed by” a radio or television station. The question whether a worker is employed "by" a radio or television station depends on the particular facts. (See Rutherford Food Corporation v. McComb, 331 U.S. 722; U.S. v. Silk, 331 U.S. 704.) In general, however, an employee is so employed where he is hired by the radio or television station, engages in its work, is paid by the radio or television station and is under its supervision and control. Employees of independent contractors and of others who work for a radio or television station but who are not "employed by” such station are not exempt under this exemption even if they engage in the named occupation. (Mitchell v. Kroger, 248 F.2d 935.) Section 793.15 DUTIES AWAY FROM THE

STATION An employee who is "employed by” a radio or television station in one or more of the named occupations may perform his work at the station or away from the station so long as his activities meet the requirements for exemption. Section 793.16 "RADIO OR TELEVISION

STATION” The employee must be employed by a “radio or television station." A radio or television station is one which is designated and licensed as such by the Federal Communications Commission. Section 793.17 "MAJOR STUDIO"

The exemption further depends on whether "the major studio” of the radio or television station

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an announcer who spends 40 hours of his 48 hour
workweek in selling broadcasting time would not
be considered to be “incidentally" engaged in such

ear ded

which employs the employee is in a city or town (d) Sources of information. The Bureau of as defined in section 13(b)(9). The location of the Budget issues periodically a booklet entitled secondary studios of the radio or television station “Standard Metropolitan Statistical Areas", which is immaterial. It is the location of the "major" lists and describes these areas in the United States studio that determines the qualification of the em and Puerto Rico. The booklet lists the Standard ployer for the exemption. A major studio for metropolitan statistical areas by name and shows purposes of the exemption is the main studio of

their population according to the latest available the radio or television station as designated on the decennial census figures as compiled by the Bureau station's license by the Federal Communications of the Consus. The booklet also lists the major Commission. It is this major studio which must cities within each standard metropolitan statistical be located in the city or town as defined in section area and the population of these cities. From 13(b) (9) of the Act.

time to time, new areas are designated as "standSection 793.18 LOCATION OF LOCATION OF "MAJOR

ard metropolitan statistical areas" and areas once

designated as such are deleted from the area defiSTUDIO"

'nitions. This booklet may be purchased, for 25 Section 13(b) (9) specifies that the "major

cents, from the Superintendent of Documents, U.S. studio" must be located “(A) in a city or town of Government Printing Office, Washington 25, D.C. one hundred thousand population or less, accord

(e) Principal city. The term “principal city", ing to the latest available decennial census figures

as used in section 13(b) (9), means the "central as compiled by the Bureau of the Census, except

city', or cities, of the standard metropolitan stawhere such city or town is part of a standard

tistical area, which are defined and designated as metropolitan statistical area, as defined and desig

such by the Bureau of the Census. The name of nated by the Bureau of the Budget, which has a

the "central city” is incorporated in the name of total population in excess of one hundred thou

the standard metropolitan statistical area. Where sand, or (B) in a city or town of twenty-five

two or more cities are designated by the Bureau thousand population or less, which is part of such

of the Census as the "central cities”, the names of an area but is at least 40 airline miles from the

such cities appear in the title of the standard metprincipal city in such area.” These tests may be

ropolitan statistical area. For example, the "Dusummarized as follows:

luth-Superior” standard metropolitan statistical (a) A city or town with more than 100,000 pop

area, has two “central” cities, namely Duluth and ulation. The exemption does not apply to any

Superior; both appear in the title of the standard employee of a radio or television station the major

metropolitan statistical area, and both are restudio of which is located in any city or town with

garded as "principal” cities for purposes of the a population in excess of 100,000.

section 13(b) (9) exemption. Where, as in the (b) A city or town with 100,000 population or example, more than one city is designated as the less. The exemption may apply if the major "central" city, airline mileage will be measured studio is located in a city or town of not more than

from that "central" city which is nearest to the 100,000 population: Provided, That the city or

city or town in which the major studio of the radio town is not within a standard metropolitan statis

or television station is located. tical area which has more than 100,000 population.

(f) Determining the population. The popula(c) A city or town with 25,000 population or less. The exemption may apply even if the major

tion of a city or town, or of a standard metropolistudio is located in a city or town that is within a

tan statistical area, will be determined by the latest standard metropolitan statistical area which has

available decennial census figures as compiled by more than 100,000 population: Provided, That

the U.S. Bureau of the Census. such city or town has a population of not more (g) Measuring airline miles. Airline miles for than 25,000, and the city or town is at least 40 air purposes of the section 13(b) (9) exemption are line miles from the principal city in such area. measured, with a straight edge on a map, from the

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