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Part 793-Exemption of Certain Radio and Television Station Employees From Overtime Pay Requirements Under Section 13(b)(9) of the Fair Labor Standards Act

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REQUIREMENTS FOR EXEMPTION

793.17 "Major studio."

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793.18 Location of "major studio".

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WORKWEEK APPLICATION OF EXEMPTION

793.5

793.6

What determines application of the exemption.
Exemption limited to employees in named occu-
pations.

793.19

793.20

793.7

"Announcer."

Workweek is used in applying the exemption. Exclusive engagement in exempt work. 793.21 Exempt and nonexempt work.

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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.

INTRODUCTORY

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 All prior opinions, rulings and interpretations which are inconsistent with the interpretations in this bulletin are rescinded and withdrawn.

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

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

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

(1)

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 APPLICATION 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

ployees of the employer may be exempt and others may not.

Section 793.6 EXEMPTION LIMITED TO
EMPLOYEES IN NAMED OCCUPA-
TIONS

The legislative history of section 13 (b) (9) makes it clear that the exemption is specifically limited to employees employed in the specified occupations (S. Rept. 145, 87th Cong., 1st sess., p. 37). To be exempt, therefore, an employee must be employed in the named occupations of announcer, a news editor, or a chief engineer. In applying this test to an employee, his title or job description is not determinative. His aggregate duties, as evidenced by the work which he actually performs in his everyday activities, determines the nature of his occupation. The employee's duties, taken as a whole, must characterize the occupation of the employee as that of announcer, news editor, or chief engineer, if the statutory requirement that he be "employed as" such an employee is to be satisfied (see Walling v. Haden, 153 F. 2d 196, cert. denied 328 U.S. 866). This exemption does not apply to employees who are employed in occupations other than those of announcer, news editor, or chief engineer.

Section 793.7 "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 present other similar routine onthe-air material. In small stations, an announcer may, in addition to these duties, operate the studio control board, give cues to the control room 'for switching programs, make recordings, make the necessary preparations for the day's programs, play records, or write advertising, promotional or similar type copy. An employee who is primarily engaged in the above described activities and in activities which are an integral part thereof will be considered to be employed as an announcer within the meaning of the exemption in section. 13(b) (9).

Section 793.8 "NEWS EDITOR"

A news editor is an employee who gathers, edits and rewrites the news. He may also select and prepare news items for broadcast and present the

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 be employed as a news editor within the meaning of the exemption in section 13 (b) (9). Section 793.9 "CHIEF ENGINEER"

A chief engineer is an employee who primarily supervises the operation, maintenance and repair of all electronic equipment in the studio and at the transmitter and is licensed by the Federal Communications Commission as a Radio Telephone Operator First Class. In small stations, only one such engineer may be employed, and in some cases he may be assisted by part-time workers from other departments. The engineer in such cases will be regarded as employed as the "chief engineer" for purposes of the section 13(b) (9) exemption provided that he performs the duties described above and is properly licensed by the Federal Communications Commission. Where two or more engineers are employed by a station, only one may qualify as "chief engineer"—that one who, on the basis of the factual situation, is in charge of the engineering work.

Section 793.10 PRIMARY EMPLOYMENT IN NAMED OCCUPATIONS

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The legislative history of the exemption is explicit that the exemption applies only to an employee who is employed "primarily" as an announcer, news editor, or chief engineer. Thus the Senate Report states: "The exemption is specifically limited to those employees who are employed primarily in the named occupations Rept. 145, 87th Cong., 1st sess., p. 37). No specific rule can be established for determining whether in any given case an employee is employed "primarily" in the named occupations. Generally, however, where an employee spends more than half of the hours he works in a workweek in a named occupation, he will be considered to be primarily employed in such occupation during that workweek. The answer will necessarily depend upon the facts in each case.

Section 793.11 COMBINATION ANNOUNCER, NEWS EDITOR AND CHIEF ENGINEER

The 13(b) (9) exemption, as was made clear during the debate on the amendment, is intended

to apply to employees employed in the named occupations 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 connection with the operation of the station. For example, 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 workweek will be considered to be primarily employed in the named occupations during that week.

Section 793.12 RELATED AND INCIDENTAL WORK

An employee who is employed primarily in one or more of the named occupations may also engage in other duties pertaining to the operation of the station by which he is employed. The Senate Report states that, for purposes of this exemption, employees who are primarily employed in the named occupation "may engage in related activities, including the sale of broadcasting time for the broadcasting company by which they are employed, as an incident to their principal occupation", (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 primarily 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 perform 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 "employed as" an announcer, news editor, or chief engineer if his dominant employment is in work outside such occupations (see Walling v. Haden, 153 F.2d 196, cert. denied 328 U.S. 866). For instance, 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

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.

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

which employs the employee is in a city or town as defined in section 13(b) (9). The location of secondary studios of the radio or television station is immaterial. It is the location of the "major" studio that determines the qualification of the employer for the exemption. A major studio for purposes of the exemption is the main studio of the radio or television station as designated on the station's license by the Federal Communications Commission. It is this major studio which must be located in the city or town as defined in section 13(b) (9) of the Act.

Section 793.18 LOCATION OF "MAJOR
STUDIO"

Section 13(b) (9) specifies that the "major studio" must be 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." These tests may be summarized as follows:

(a) A city or town with more than 100,000 population. The exemption does not apply to any employee of a radio or television station the major studio of which is located in any city or town with a population in excess of 100,000.

(b) A city or town with 100,000 population or less. The exemption may apply if the major studio is located in a city or town of not more than 100,000 population: Provided, That the city or town is not within a standard metropolitan statistical area which has more than 100,000 population.

(c) A city or town with 25,000 population or less. The exemption may apply even if the major studio is located in a city or town that is within a standard metropolitan statistical area which has more than 100,000 population: Provided, That such city or town has a population of not more than 25,000, and the city or town is at least 40 airline miles from the principal city in such area.

(d) Sources of information. The Bureau of the Budget issues periodically a booklet entitled "Standard Metropolitan Statistical Areas", which lists and describes these areas in the United States and Puerto Rico. The booklet lists the Standard metropolitan statistical areas by name and shows their population according to the latest available decennial census figures as compiled by the Bureau of the Census. The booklet also lists the major cities within each standard metropolitan statistical area and the population of these cities. From time to time, new areas are designated as "standard metropolitan statistical areas" and areas once designated as such are deleted from the area definitions. This booklet may be purchased, for 25 cents, from the Superintendent of Documents, U.S. Government Printing Office, Washington 25, D.C.

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(e) Principal city. The term "principal city", as used in section 13 (b) (9), means the "central city", or cities, of the standard metropolitan statistical area, which are defined and designated as such by the Bureau of the Census. The name of the "central city" is incorporated in the name of the standard metropolitan statistical area. Where two or more cities are designated by the Bureau of the Census as the "central cities", the names of such cities appear in the title of the standard metropolitan statistical area. For example, the "Duluth-Superior" standard metropolitan statistical area, has two "central" cities, namely Duluth and Superior; both appear in the title of the standard metropolitan statistical area, and both are regarded as "principal" cities for purposes of the section 13(b) (9) exemption. Where, as in the example, more than one city is designated as the "central" city, airline mileage will be measured from that "central" city which is nearest to the city or town in which the major studio of the radio or television station is located.

(f) Determining the population. The population of a city or town, or of a standard metropolitan statistical area, will be determined by the latest available decennial census figures as compiled by the U.S. Bureau of the Census.

(g) Measuring airline miles. Airline miles for purposes of the section 13(b) (9) exemption are measured, with a straight edge on a map, from the

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