stating “it is settled that the burden (with respect to a given employee) is met if it is proved that the employee has in 21 fact performed work for which he was improperly compensated and if the employee produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference”
How later courts described this case
- stating “it is settled that the burden (with respect to a given employee) is met if it is proved that the employee has in 21 fact performed work for which he was improperly compensated and if the employee produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference”
- holding that task of rewriting press releases, etc. 14 did not meet artistic professional exemption in part because it did not “require any special imagination or skill at making a complicated thing seem simple”
- holding that task of rewriting press releases, etc. did not meet artistic professional exemption in part because it did not “require any special imagination or skill at making a complicated thing seem simple”
- stating that in FLSA cases, “[c]ourts commonly allow representative employees to prove violations with respect to all employees” and collecting cases
Written by the judges who cited it.
The opinion
ALITO, Circuit Judge,
dissenting in part.
I must disagree with the .court’s interpretation of the “small newspaper” exemption contained in the Fair Labor Standards Act (FLSA), 29 U.S.C. § 213 (a)(8). This provision exempts “any employee employed in connection with the publication of any weekly, semiweekly, or daily newépaper with a circulation of less than four thoúsand the major part of which circulation is within the county where published or counties contiguous thereto” (emphasis added). The court interprets this language to apply only if the “enterprise” of which the newspaper is a part has a circulation of less than 4,000. The :court cites no legislative history directly supporting this interpretation, and the court forswears reliance on the sparse administrative interpretations that are available. Under these circumstances, I cannot accept the court’s interpretation.
Looking solely at the statutory language, I do not think the term “newspaper” should be interpreted to mean “enterprise.” When the FLSA was enacted, Congress surely recognized that a small “néwspaper” could be part of a larger enterprise; newspaper chains were not unknown. Accordingly, if Congress had meant to refer to an “enterprise,” it would, I presume, have used that or some comparable term. I would, therefore, interpret the term “newspaper” to mean what it says: an entity that is, in reality and not just in name, a separate newspaper.
This is the definition propounded in a 1946 Wage and Hour Division opinion letter, which stated that a publisher may treat newspapers separately in determining whether their circulations exceed 4,000 unless “the purported separate publications are properly to be regarded as one and the same newspaper.” 1948 Wage & Hour Manual (BNA) at 328. Similarly, a 1965 Wage and Hour Division opinion letter stated that “when a company publishes more than one newspaper, each newspaper is tested separately in order to determine whether the circulation is less than four thousand, provided that, in addition to their separate mastheads, the several newspapers carry different local news items.” Op.Letter No. 376, [1961-1966 Transfer Binder] Lab.L.Rep. (CCH) ¶ 30,988. As the court notes, a 1969 Wage and Hour opinion letter does not seem entirely consistent with these earlier opinion letters. See Op.Letter No. 973, [1967-1972 Transfer Binder] Lab. L.Rep.' (CCH) ¶ 30,511. This letter, however, expressly stated that' “an unequivocal opinion” could not be given because “sufficient information” had not been provided. 1 *704 For this reason, I would not give this opinion letter much weight. But even if this opinion letter deprives the prior opinion letters of any entitlement to deference that they would otherwise enjoy, I still think that their interpretation of the statutory language is more accurate than the court’s.
The district court in this ease applied the interpretation set out in the 1965 opinion letter. Accordingly, I believe that the district court employed the correct legal standard. I am also not convinced that the district court misapplied this standard to the facts of this case. I would therefore affirm the order of the district court.
. The entire opinion letter states:
You indicate a member of your association publishes a weekly newspaper of under 4,000 circulation. In addition, he prints a military base newspaper of more than 4,000 circulation. He has a contract with the base under which he sells the advertising and handles the printing. He neither gathers nor edits the news. The base newspaper is not circulated out of the State, but it contains national advertising which he, handles. Only his printing employees work on both the weekly and the base newspaper.
Your letter does not contain sufficient information for us to give you an unequivocal opinion in the matter. However, it would appear *704 that the publisher’s work in connection with the printing and in particular with the sale of advertising for the military base newspaper would remove it from the application of the exemption provided by section 13(a)(8) of the Fair Labor Standards Act.
We would also like to direct your attention to the possible application of the McNamara-O'Hara Service Contract Act and the Walsh-Healy Public Contracts Act to the newspaper printing contract entered into with the military base. However, without additional details on the contract, we are not in a position to give you a definitive answer on the application of these laws. If you should desire to submit more information on this contract, we would be pleased to consider the matter further.