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Lead video editor/graphic artist was not an exempt ‘creative professional,’ so overtime claim advances

By Sherri M. Schroeder, J.D.

However, the claim against the Roman Catholic Church failed since the diocese did not qualify as an “employer” under the law.

Claims by a lead video editor and graphic artist brought under the FLSA and New York Labor Law against his employer, DeSales Media Group, for failure to pay overtime compensation, survived the employer’s motion for summary judgment on the basis that he was exempt from overtime under the “creative professionals” exemption, ruled a federal district court in New York. On the other hand, the court determined that the Roman Catholic Diocese of Brooklyn was not the employee’s employer despite the close relationship between DeSales, which published news “with a Catholic point of view,” and the dioceses, which appointed DeSales’ officers and board members (Dobrosmylov v. DeSales Media Group, April 1, 2021, Cogan, B.)

Interrelationship. DeSales is a non-profit corporation that publishes news “with a Catholic point of view.” It has a close relationship with the Roman Catholic Diocese of Brooklyn, as the Bishop appoints DeSales’ officers and board members. The diocese owned DeSales’ office space. The two entities also enjoyed common benefits plans. The employee also alleged that the two entities shared common management and ownership.

Work duties. As lead video editor and graphic artist, the employee spent between 30 and 40 percent of his time “downloading videos, filling out forms, and keeping track of things.” None of the parties disputed that these tasks did not involve creativity; their dispute centered on whether his remaining tasks were those of a “creative professional,” which would mean that he was exempt from overtime pay.

The bulk of the employee’s time involved editing videos and creating graphics for “Currents,” a nightly newscast focused on the Catholic church. He was involved in all stages of production. After receiving a “rundown” of stories for the broadcast, the employee would download video files, put them in video editing software, and then edit them according to the directions received from the executive producer. He also created the graphics that appeared on the show. At the production stage, he would track any corrections to be made during editing. During post-production, he would fix those errors and assemble the 25-minute newscast.

In addition to editing videos and creating graphics, the employee would also ensure that the newscast met DeSales’ production standards. To do this, he would refer to a style guide he helped create. Additional duties included editing videos and creating graphics for a 30-second weekly promotion of “Currents” for “Tablet,” a DeSales’ newspaper. The employee’s remaining job duties involved pitching news stories for “Currents” at daily staff meetings.

“Creative professional.” According to 29 C.F.R. § 541.302(c), a court must distinguish “work requiring invention, imagination, originality or talent” from “work that primarily depends on intelligence, diligence and accuracy.” In this case, the court found that the employee’s primary duties fell into the latter category. The record showed that his primary duties were editing videos, creating, graphics, and ensuring that the finished products met DeSales’ production standards. Recognizing that this work could involve a great deal of invention, imagination, originality, and talent, what mattered to the court was what the employee’s primary duties actually were.

In this case, the employee’s actual duties depended in large part on his ability to follow directions. In the rundown, he received step-by-step instructions detailing the show down to the second. According to the court, when he created graphics, edited video, and ensured the finished products met production standards, his job required more “intelligence, diligence and accuracy” than “invention, imagination, originality or talent.”

DeSales’ argument, focusing on the finished product rather than the process by which it came about, missed the mark. “Fixing errors and gaps” and “changing and adding information” were tasks of intelligence and diligence, not creativity. While DeSales’ cast the employee as a “painter who creates an original work,” the court found him to be no more than a participant in a “paint-by-numbers scheme.” Therefore, his work of editing videos, creating graphics, and ensuring that the finished products met production standards did not cause him to fall within the overtime exemption, and so the court denied the employer motion for summary judgment.

Diocese as employer. As to the employer status of the diocese, the employee relied on a “single integrated enterprise” theory of employment to plead that it, in addition to DeSales, qualified as his employer. However, even assuming that theory could apply in the FLSA context, the court found that the theory would not apply in this case.

Control of labor relations. The central concern of this theory is control of labor relations, and the employee offered very little evidence of this. Only DeSales paid him and provided his wage statements, tax statements, and exempt employee notices, and these notices were prepared by DeSales’ employees not the diocese’s. Likewise, it was DeSales’ employees who supervised his work, set his schedule, prepared his performance reviews, and approved his time off. To the court, these facts taken together strongly suggested that DeSales and the diocese were not a single integrated enterprise.

Interrelated operations. The employee also failed to show interrelated operations. The record did not show that the two entities comingled their operations by sharing employees, services, records, equipment, bank accounts, inventories, or lines of credit. The fact that the diocese owned DeSales’ office space did not suggest the lack of an arm’s-length relationship. Similarly, the fact that the two entities had common benefits plans did not establish a single integrated enterprise, either.

Although the close relationship suggested to the court the existence of a single integrated enterprise, it could not overcome the remaining evidence on record. Without more, common ownership and common purpose did not answer the fundamental question of whether each corporate entity controlled the employee. For the court, then, his proffered evidence of common ownership and a common business plan were not enough to establish a single integrated enterprise. Therefore, the court concluded that the diocese did not quality as the employee’s employer and terminated it as a party to the action.