FLSA2006-45 — Copy editors and senior copy editors under section 13(a)(1)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

FLSA2006-45
December 21, 2006

Dear Name*:

This is in response to your letter requesting an opinion regarding whether copy editors and
senior copy editors qualify as “administrative” employees under section 13(a)(1) of the Fair
Labor Standards Act (FLSA) and 29 C.F.R. Part 541,
1
and, therefore, are exempt from the
minimum wage and overtime pay requirements of the FLSA. It is our opinion that the copy
editors and senior copy editors are not exempt administrative employees.

Your company is a direct marketing firm that focuses on the sale of books and promoting sales
through several book clubs. The copy editors and senior copy editors review materials used for
marketing and promoting books to book club members; they do not review the content of the
books themselves. Your correspondence describes the two positions using virtually identical
terms, with the exception of the required experience. The copy editor position requires two
years of copy editing experience; the senior copy editor position requires four years of this
experience. In addition, with respect to “work autonomy,” the copy editor position is rated at
three (on a scale of one to five, with one representing the least autonomy), and the senior copy
editor position is rated at four on the same scale. Although both positions report to the
supervisor of copy editing, the senior copy editor’s work apparently is monitored less closely
than the work of the copy editor. Each position requires a bachelor’s degree in either English
or Journalism.

Employees in each of the two positions read club marketing promotional materials prepared by
copywriters and make any necessary corrections for structure, grammar, comprehension,
spelling, clarity, and accuracy. They correct the keying of test versions, check for adherence to
legal requirements for trademarks and copyrights, and ensure compliance with postal rules and
scanning standards. The copy editors and senior copy editors also review the accuracy of
publication titles, authors’ names, code numbers, and prices, and ensure that the company’s
requirements for style and procedures are met. They organize work priority to meet deadlines
according to promotion schedules. They make decisions on workflow and communicate these
decisions to club copywriters.

If a particular job is late, the copy editors and senior copy editors are responsible for making a
judgment call concerning the level of review and whether to release the materials to prepress.
They identify and implement streamlining ideas. On occasion, they head special projects
assigned by management. They attend professional seminars and classes, as may be needed, to
keep their skills current. They act as liaison with the legal department on legal compliance
issues and with the operations department to assure all postal and scanning standards are
correct. They attend departmental and book club status meetings.

1
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in this letter
can be found at
www.wagehour.dol.gov.

Section 13(a)(1) of the FLSA exempts from its minimum wage and overtime pay provisions
“any employee employed in a bona fide . . . administrative . . . capacity.” The exemption is
determined not by occupational title or job classification, but rather by the duties and salary of
the individual employee involved. See 29 C.F.R. § 541.2. The regulatory provisions relevant
to your inquiry are contained in 29 C.F.R. §§ 541.200-.203. As provided in the regulations, the
administrative exemption in section 13(a)(1) of the FLSA applies to “any employee”:

(1) Compensated on a salary or fee basis at a rate of not less than $455 per week
. . . exclusive of board, lodging or other facilities;

(2) Whose primary duty is the performance of office or non-manual work
directly related to the management or general business operations of the
employer or the employer’s customers; and

(3) Whose primary duty includes the exercise of discretion and independent
judgment with respect to matters of significance.

29 C.F.R. § 541.200(a).

We understand that the copy editors and senior copy editors receive at least $455 per week on a
salary basis. Therefore, the first requirement for the exemption is satisfied.

The primary duty of the copy editors and senior copy editors is “office or non-manual work.”
We do not believe their primary duty, however, is “directly related to the management or
general business operations of the employer or the employer’s customers.” As explained in the
preamble to the 2004 revisions to the Department’s Part 541 regulations, this exemption is
limited to those employees whose duties relate to the administrative, as distinguished from the
production, functions of a business. Thus, the exemption applies to employees whose work
involves servicing the business itself. See Defining and Delimiting the Exemptions for
Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed. Reg.
22,121, 22,141 (Apr. 23, 2004).

Although the “production versus staff” dichotomy in the test is instructive, it is not dispositive
of exempt status. In Bothell v. Phase Metrics, Inc., 299 F.3d 1120 (9th Cir. 2002), for example,
the Ninth Circuit found the dichotomy “useful only to the extent that it helps clarify the phrase
‘work directly related to the management policies or general business operations.’” Id. at 1126
(citation omitted). The court further stated:

This approach is sometimes appropriate because, as we have said, the dichotomy
is but one analytical tool, to be used only to the extent that it clarifies the
analysis. Only when work falls ‘squarely on the production side of the line,’ has
the administration/production dichotomy been determinative.

Id. at 1127 (citation omitted).

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As noted in the preamble to the final rule, the Department has adopted the Ninth Circuit’s
approach in Phase Metrics that the “production versus staff” dichotomy is but one analytical
tool that is determinative only if the work falls squarely on the production side of the line. See
69 Fed. Reg. at 22,141. The primary duty of the copy editors and senior copy editors described
in your request does seem to fall squarely on the production side of the line for their employer,
a direct marketing firm, and, thus, the employees are non-exempt.

As indicated above, these employees read and make any necessary corrections to club
marketing promotional materials for structure, grammar, comprehension, spelling, clarity, and
accuracy. They correct the keying of test versions and check for adherence to legal
requirements for trademarks and copyrights and postal and scanning standards. They also
review the accuracy of publication titles, authors’ names, code numbers, and prices and ensure
that the company’s requirements for style and procedures are met. All of these processes
appear to be technical steps involved in the production of the employer’s marketing materials.

The copy editors and senior copy editors attend professional seminars and classes, as needed, to
keep their skills current. They also attend departmental and book club status meetings. These
activities do not appear to be administrative duties related to the management or general
business operations of the employer. Although attending club status meetings might be viewed
as an activity related to the general business operations of the employer’s customers, i.e., the
book clubs, you provide no information that suggests how the employees’ particular duties
during this activity may affect the management or general business operations of the clubs
themselves in significant matters. See 29 C.F.R. § 541.201(c). Consequently, the copy editors
and senior copy editors do not appear to meet the second prong of the administrative
exemption.

The third prong in the test for the administrative exemption requires that the employee’s
primary duty must include the exercise of discretion and independent judgment with respect to
matters of significance. “The exercise of discretion and independent judgment implies that the
employee has authority to make an independent choice, free from immediate direction or
supervision.” 29 C.F.R. § 541.202(c). As further clarified in 29 C.F.R. § 541.202(e), “[t]he
exercise of discretion and independent judgment must be more than the use of skill in applying
well-established techniques, procedures or specific standards described in manuals or other
sources.” Many of the duties described above (checking materials for grammar, spelling,
clarity, etc.) involve the use of skill rather than the exercise of discretion and independent
judgment. See Wage and Hour Opinion Letter
FLSA2006-14NA(June 29, 2006) (employee
who reviewed government contract bid proposals, client reports and government reports for
grammar, accuracy, completeness, and “plain English” did not exercise discretion and
independent judgment). In this case, the employees also organize work priorities to meet
production deadlines set by management. We believe this activity does not demonstrate the
exercise of discretion with respect to matters of significance because of the nature of the
decision itself and the fact that management has already set the production deadline for these
employees. Similarly, although they make decisions on workflow within their areas and
communicate these decisions to club copywriters, the discretion exercised is fairly narrow
because of the deadlines set by others. In this regard, it is not sufficient that an employee
makes decisions regarding “when and where to do different tasks, as well as the manner in
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which to perform them.” Clark v. J.M. Benson Co., 789 F.2d 282, 287 (4th Cir. 1986). Rather,
the regulations emphasize both the nature and the level of importance of an employee’s
decisions as they relate to managing the employer’s business operations. See 29 C.F.R.
§ 541.202(b); Wage and Hour Opinion Letters
FLSA2006-27 (July 24, 2006) and FLSA2005-
21 (August 19, 2005).

On occasion, when a particular job is late, the employees make a judgment call regarding the
level of higher review needed and on releasing the material to prepress. Although this activity
does suggest discretion and independent judgment, the arrangement seems akin to management
policies in which members of the staff are delegated some special authority for unusual or
emergency circumstances. This function, however, does not appear to be a routine or normal
part of the employees’ primary duty.

The copy editors and senior copy editors identify and implement streamlining ideas. On
occasion, they head special projects assigned by management. Whether these functions are part
of the employees’ primary duty and require discretion and independent judgment on matters of
significance depends on the individual circumstances. It does not appear that these employees
have broad discretion outside their specialized areas of responsibility to implement policy
changes or to carry out special assignments on matters of significant impact to the company.
Moreover, these functions do not appear to be essential to the performance of the employees’
primary duty.

For the reasons stated above, we do not believe the primary duty of the copy editors and senior
copy editors is directly related to the management or general business operations of the
employer or the employer’s customers or includes the exercise of discretion and independent
judgment with respect to matters of significance. It is our opinion that these employees do not
qualify for the administrative exemption and must, therefore, be paid in accordance with the
minimum wage and overtime pay provisions of the FLSA.

This opinion is based exclusively on the facts and circumstances described in your request and
is given based on your representation, express or implied, that you have provided a full and fair
description of all the facts and circumstances that would be pertinent to our consideration of the
question presented. Existence of any other factual or historical background not contained in
your letter might require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private litigation concerning
the issue addressed herein. You have also represented that this opinion is not sought in
connection with an investigation or litigation between a client or firm and the Wage and Hour
Division or the Department of Labor.

We trust that the above information is responsive to your inquiry.

Sincerely,

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Paul DeCamp
Administrator

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C.
§ 552(b)(7).
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