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HD 8051 ,A82 pt. 7 1962

Sept

DEPART

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Part 793—Exemption of Certain Radio and Television Statio Em

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

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UN LD STATE
INTRODUCTORY

limited classification of employees employed by

small market radio and television stations whose Section 793.0 PURPOSE OF INTERPRETATIVE BULLETIN

employment meets the requirements for the ex

emption. These requirements and their meaning This Part 793 constitutes the official interpreta

and application are discussed in this bulletin. tive bulletin of the Department of Labor with respect to the meaning and application of section

REQUIREMENTS FOR EXEMPTION 13(b) (9) of the Fair Labor Standards Act of 1938,

Section 793.3 STATUTORY PROVISION as amended. This section provides an exemption from the overtime pay provisions of the Act for

Section 13(b) (9) of the Act exempts from the

overtime requirements of section 7, but not from certain employees employed by certain small market radio and television stations. This exemption

the minimum wage provisions of section 6, of the

Act: was added to the Act by the 1961 amendments. It is the purpose of this bulletin to make available any employee employed as an announcer, news editor, or in one place the interpretations of the provisions

chief engineer by a radio or television station the major

studio of which is located (A) in a city or town of one in section 13(b) (9) which will guide the Secretary

hundred thousand population or less, according to the of Labor and the Administrator in the perform latest available decennial cenus figures as compiled by the ance of their duties under the Act unless and until

Bureau of the Census, except where such city or town they are otherwise directed by authoritative de is part of a standard metropolitan statistical area, as cisions of the courts or conclude, upon re-examina

defined and designated by the Bureau of the Budget, which

has a total population in excess of one hundred thousand, tion of an interpretation, that it is incorrect.

or (B) in a city or town of twenty-five thousand populaSection 793.1 RELIANCE UPON INTER

tion or less, which is part of such an area but is at least

40 airline miles from the principal city in such area. PRETATIONS

Section 793.4 GENERAL REQUIREMENTS The interpretations of the law contained in this

FOR EXEMPTION part are official interpretations which may be relied upon as provided in section 10 of the Portal

All of the following requirements must be met to-Portal Act of 1947. All prior opinions, rulings

in order that an employee may be exempt under

section 13(b) (9): and interpretations which are inconsistent with the interpretations in this bulletin are rescinded

(a) The employee must be "employed as” an and withdrawn.

announcer, or a news editor, or a chief engineer.

(b) The employee must be employed “by” a Section 793.2 GENERAL EXPLANATORY radio or television station. STATEMENT

(c) The major studio of such radio or television Some employees of radio and television stations

station must be located in a city or town which perform work which may be exempt from the min

meets the prescribed population and locality tests. imum wage and overtime requirements under sec Section 793.5 WHAT DETERMINES APtion 13(a) (1) of the Act. The 13(a)(1) exemp PLICATION OF THE EXEMPTION tion applies to employees employed in a bona fide

The exemption applies only to an employee who executive, administrative or professional capacity,

is "employed as" an announcer, news editor, or or in the capacity of outside salesman, as these

chief engineer, under the conditions specified in terms are defined and delimited by regulations of

section 13(b) (9). Although the nature of the emthe Secretary. This exemption continues to be

ployer's business is important in applying the exavailable for employees of radio and television

emption to a particular employee in one of the stations who meet the requirements for exemption named occupations, employment in the named ocspecified in Part 541 of this chapter. The section cupation is an essential prerequisite for exemption. 13(b) (9) exemption, which is an exemption from Whether an employee is exempt therefore depends the overtime provisions of the Act, but not from upon an examination of his duties as well as the the minimum wage requirements, applies to a nature of the employer's activities. Some em

(1)

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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 engineerng work. Section 793.10 PRIMARY EMPLOYMENT

IN NAMED OCCUPATIONS 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 AN

NOUNCER, NEWS EDITOR AND

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

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