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Do Video editors qualifiy for the "creative professional" overtime-exemption?

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tony guliani
Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 5:19:06 am

I've been reading legalese for the last few days regarding what determines whether a video editor is overtime-exempt. It seems like the law is very vaguely written. The fair labor standards act (FLSA) includes a bit inside of it's "professional exemption" here http://www.flsa.com/coverage.html that may or may not apply
"Some employees may also perform "creative professional" job duties which are exempt. This classification applies to jobs such as actors, musicians, composers, writers, cartoonists, and some journalists. It is meant to cover employees in these kinds of jobs whose work requires invention, imagination, originality or talent; who contribute a unique interpretation or analysis."


I have two questions as a result:
Does anyone have any different interpretation of the law (or even better, an actual case where it has been decided either way) AND

Are the on-staff editors here generally overtime exempt or eligible for overtime?

It seems really difficult to find a specific answer because most states are different than the federal law. I'd really appreciate any input!


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Todd Terry
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 2:28:15 pm

We only have one editor on staff (besides me) and he is a salaried employee. However when we work him overtime we do compensate him.... either with a little something extra on his paycheck, or comparable time off to make up for the extra time on the clock.

It sounds like, according to that law, one could make the case that an editor falls under a "creative professional exemption" and not legally have to be paid overtime.

Which, of course, would not be right. Legal or not.

If someone works overtime for you... pay them.

I don't like to work for free, and I don't expect my employees to work for me out of the goodness of their hearts, either.


T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com






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Mark Suszko
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 2:49:59 pm

There is a clear OT exemption in the FLSA web site for computer jockeys and "small-market TV broadcast technicians", I.E. the poor guy that has to baby-sit the transmitter or MC all night - but (hopefully), nothing in there for video editor or cameraman. Do update us on this if you come across any new info, please.


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Mark Raudonis
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 2:56:14 pm

[tony guliani] "work requires invention, imagination, originality or talent; who contribute a unique interpretation or analysis."
"


That sounds like an editor to me. Exempt.

How you want to handle OT is up to you, but according to the letter of the law... it's not applicable.

Mark



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Mark Suszko
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 3:20:08 pm

Maybe. But could also fall under "technician", which is not exempt. It remains a grey area and probably would be influenced by the specific level of autonomy of that editor. If s/he's mostly taking direction from a client or Director-Producer, not exempt. If they are totally independent, maybe exempt, but best to get an official ruling to make certain. And by "official", I don't mean the bosses's opinion, but a neutral labor relations mediator.

Anybody that would short-change their creatives on the overtime they earn is a poor manager and will get the level of productivity and artistic results they deserve.


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grinner hester
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 3:10:01 pm

Labor laws. It's how we invite illegals, now aint it?
I've always discarded this nonsense. If I work overtime, I get paid for it. If someone I hire works overtime they get paid for it. It's never had to be more confusing than that.



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Bill Davis
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 7:24:02 pm


Yet another area in life where simplistic thinking just doesn't do the job.

There are "editors" who are nothing more than button pushers. "Here - you're an editor - take these 35 demo reels and edit them into a single review master." - Nothing "creative" about that gig.

Then there are editors who win Academy Awards who's contributions are often every bit as "artistic" as the costume designers and the best directors.

So sorry, but the right answer is always going to be "it depends."

Life would be ever so much easier if decisions could be constrained to black and white. Sometimes on the set I *yearn* for black and white decisions. Just ONCE I'd love somebody to hold up a sign that said "Hey Bill, go ahead and give this actor another TAKE - he has a better performance in him" or "Hey Bill, cut your losses, this is the best you're going to get right now. - move on."

But life's not like that is it? You want a "rule" for whether to pay overtime or not? That would certainly be nice. But any rule you make will likely screw things up in MANY if not MOST of the situations you apply it to. Why? Because the possible reasonable exceptions to any RULE ebb and flow with the circumstances it's applied to - and without judgement and flexibility, common sense and experience mixed into a constantly morphing stew of circumstance that you can judge occurrence by occurrence - living life or doing business simply according to "the rules" is sterile and banal and too often, ineffective.

Just like in decisions in real life.

Sorry.





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Todd Terry
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 7:35:38 pm

[Bill Davis] "You want a "rule" for whether to pay overtime or not? That would certainly be nice."

Actually, I think it is pretty simple.

If someone works overtime, pay them for it. Period.

You build no good karma by taking advantage of people, their time, or their talent. And bosses who won't pay for what they get (or those who do so grudgingly only because they absolutely positively mandated-by-law have to) are generally not ones that good people want to work for.


T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com






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grinner hester
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 7:41:27 pm

It really is that simple.




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tony guliani
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 7:50:01 pm

This discussion brings up an interesting point. The FLSA only sets the bare minimum of what is legally allowed. Companies can feel free to go above and beyond that for their employees. Also, freelancers can set their rates to include double and triple time and it is up to the clients to say yes or no.

So I have to ask a slightly modified question:
"who here (other than those who posted above) willingly pays overtime knowing that it is not legally required?" and "who here gets overtime even though it is not legally required?"

I am trying to figure out if we are speaking in sunshine-and-roses "if I were king" talk, or if this is actually how people do business out there.

Thanks for all of the thoughts so far. It's refreshing to be in a civilized forum for once...


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Todd Terry
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 8:16:40 pm

[tony guliani] "who here (other than those who posted above) willingly pays overtime"

Haha... is that a case of "I don't like the answer so I'll ask someone else?"

My guess is that anyone smarmy enough not to pay overtime is not going to be jumping up and down raising their hand. And I think most of us in here do pay OT. As it should be. Sunshine nor roses notwithstanding.


T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com






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tony guliani
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 8:27:57 pm

[Todd Terry] "My guess is that anyone smarmy enough not to pay overtime is not going to be jumping up and down raising their hand. And I think most of us in here do pay OT. As it should be. Sunshine nor roses notwithstanding."

Well said, Todd. Well said. Selective bias at work.


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Mark Suszko
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 16, 2010 at 9:08:09 pm

I don't pay it, but I get it. I'm covered under the AFSCME union rules as a civil servant. As far as qualifications for the FLSA exemption, unless you have a J.D. hanging on the wall behind you, as well as a background in Labor regulation, I'm not going to just accept anybody's say-so at face value. Even then, based on the specific situation, the expert could be wrong. Stakes are too high. OT can be more than a quarter of my take-home in a busy month. Of course, if we weren't understaffed, there might be somewhat less OT happening. You pay it on one end or the other, eventually. I don't go out of my way to generate the OT, and believe me, I'd rather be spending that time at home with my wife and kids and etc. instead of taking the extra money. And in fact I have the option, which I normally take, of taking "compensatory time" or "comp time" for the OT instead of cash. Comp time works like free personal days, and you can apply it to vacations or anything you want; that's handy for things like taking a couple hours out of a day to attend the kid's school recital, or handle some heavy household errands, or anything of that nature, it's up to me. Comp time has to be burned before personal or vacation time, but any that's left over, gets converted to cash at the end of the fiscal. One year I had racked up enough OT as comp that when the unused portion of it was cashed-out, it paid for my wife's engagement ring. Sort of like a second tax refund in late summer. OT is what you pay me to voluntarily give up some of my personal life and family responsibilities, and to go beyond what's normally expected, to suit your time-critical need. I come thru; you pay me for it. Fair's fair.


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Chris Blair
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 17, 2010 at 1:19:27 am

I think most good business owners understand that paying people for the work they do, and especially compensating them (with pay or time off) when they go above and beyond their normal work hours, is the way to run your business. It's how we've done it for 14 years.

Certainly there are scads of dickweeds out there that will take advantage of every loophole and every opportunity available (especially the ones veiled in legalese) to AVOID paying people. Some of those dickweeds actually end up running extremely profitable businesses. I've worked for some of these people and companies and can say first-hand they are usually downright toxic environments...with most people continually plotting their get-a-way or their payback to the boss or company. It often catches up with the business or owner (although some people run businesses like that their entire lives!).

In my book, success in business is more than just stuffing your pockets with as much cash as you can and taking advantage of the people who help you. But that's just me.

Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com
Read our blog http://www.videomi.com/blog


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Mark Raudonis
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 17, 2010 at 11:40:59 am

I think we're back to defining what "kind" of editor we're
Talking about. If I'm NOT dictating hours and the editor is setting
Their own work hours then how can you justify OT?



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grinner hester
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 18, 2010 at 1:40:47 am

All of us do. It's not about legalities. Ya get what ya pay for. It's important to keep creatives happy. A fella can dig a ditch and be mad about it. One can't make good art when not motivated. Don't pay OT and you'll see em split after their shift is done.
...or half ass it while cussing you.



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Bill Davis
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 18, 2010 at 5:55:19 am


If you're running a traditional "time clock" shop - well - all power to you.

I've simply never been able to do that. I still believe that tracking hours is a poor way to run a creative business. I guess that's why I'm not in commercials space any longer. I don't want to keep having to bill more hours just to make a landlord rich. I also don't carry traditional employees any more. I pay for professional help. And I pay them their full card rates. There's hardly ever OT in question because virtually EVERY shoot I do involves OT and it's built into the rate.. Everyone who works on my shoots expects to be paid for a 10 hour stretch even if the shoot is done in 7. To me, that's how you attract and keep the best crews.

As I've always said. when you base money on time, you reward the mediocre and slow and penalize the smart and fast.

Pay them for 10 hours - and don't penalize them if they get it done in 7 - and the result is that the men and women who are both good and fast will pick your gig over one run by the guy who sends half the crew home at 3pm and then makes everyone else work harder, just to keep the OT column under control.

Different strokes - as they say.




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grinner hester
Re: Do Video editors qualifiy for the "creative professional" overtime-exemption?
on Jul 18, 2010 at 1:27:08 pm

Slow editors are unemployed editors.



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