
USCA1 Opinion

	




          February 3, 1995                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1032                            ROBERT B. REICH, SECRETARY OF                           LABOR, U.S. DEPARTMENT OF LABOR,                                Plaintiff - Appellant,                                          v.                           NEWSPAPERS OF NEW ENGLAND, INC.                    D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,                               Defendants - Appellees.                                 ____________________          No. 94-1033                     SECRETARY UNITED STATES DEPARTMENT OF LABOR,                                Plaintiff - Appellee,                                          v.                           NEWSPAPERS OF NEW ENGLAND, INC.                    D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,                               Defendants - Appellants.                                 ____________________                                     ERRATA SHEET               The opinion of  this Court  issued on January  24, 1995,  is          amended as follows:               Footnote  21  on  page   48,  line  3  should   read  "post-          investigation violations.   Though  the magistrate judge  hearing          the  motion  ultimately  denied  it,  the Secretary's  supporting          arguments are enlightening: . . ."  The last two sentences of the          same  footnote  should read:   "The Secretary  should have either          filed a  second  lawsuit or  objected to  the magistrate  judge's          denial of the motion pursuant to Fed. R. Civ. P. 72(a).  The fact          that it did neither may not be rectified through this appeal."          January 31, 1995  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1032                            ROBERT B. REICH, SECRETARY OF                           LABOR, U.S. DEPARTMENT OF LABOR,                                Plaintiff - Appellant,                                          v.                           NEWSPAPERS OF NEW ENGLAND, INC.                    D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,                               Defendants - Appellees.                                 ____________________          No. 94-1033                     SECRETARY UNITED STATES DEPARTMENT OF LABOR,                                Plaintiff - Appellee,                                          v.                           NEWSPAPERS OF NEW ENGLAND, INC.                    D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,                               Defendants - Appellants.                                 ____________________                                     ERRATA SHEET               The opinion of  this Court  issued on January  24, 1995,  is          amended as follows:               On page 35, first  full paragraph, line 11, delete  "(2)" so          that it reads:  ". . . creative in character"  and "which depends          primarily on the . . ."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1032                            ROBERT B. REICH, SECRETARY OF                           LABOR, U.S. DEPARTMENT OF LABOR,                                Plaintiff - Appellant,                                          v.                           NEWSPAPERS OF NEW ENGLAND, INC.                    D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,                               Defendants - Appellees.                                 ____________________          No. 94-1033                     SECRETARY UNITED STATES DEPARTMENT OF LABOR,                                Plaintiff - Appellee,                                          v.                           NEWSPAPERS OF NEW ENGLAND, INC.                    D/B/A/ THE CONCORD MONITOR AND GEORGE WILSON,                               Defendants - Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                             and Keeton,* District Judge.                                          ______________                                _____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.               Edward  E.  Shumaker  III,  with  whom  Robert  J.  Finn and               _________________________               ________________          Gallagher,  Callahan   &  Gartrell,  P.A.,  were   on  brief  for          _________________________________________          Newspapers of New England, Inc. d/b/a The Concord Monitor, et al.               John G. Kester, Thomas G. Hentoff and Williams & Connolly on               ______________  _________________     ___________________          brief for Newspaper  Association of  America, National  Newspaper          Association, American  Society of Newspaper Editors, and National          Association of Broadcasters, amici curiae.               Anne Payne Fugett, Attorney,  U.S. Department of Labor, with               _________________          whom  Thomas  S.  Williamson,  Jr., Solicitor  of  Labor,  Monica                ____________________________                         ______          Gallagher, Associate  Solicitor, William J. Stone,  Acting Deputy          _________                        ________________          Associate  Solicitor, and  Albert Ross, Regional  Solicitor, U.S.                                     ___________          Department of Labor, were on brief for the Secretary of Labor.               David  S. Barr,  Michael J. Gan  and Barr, Peer  & Camens on               ______________   ______________      ____________________          brief for The Newspaper Guild, AFL-CIO, CLC, amicus curiae.                                 ____________________                                   January 24, 1995                                 ____________________                                         -2-                    TORRUELLA, Chief Judge.  These cross appeals require us                    TORRUELLA, Chief Judge.                               ___________          to  decide  whether  the reporters,  editors,  and  photographers          employed  by a  small  community newspaper  are  exempt from  the          overtime and recordkeeping provisions of the Fair Labor Standards          Act of 1938,  29 U.S.C.   201 et seq. ("FLSA" or the "Act").  The          case revolves  around whether the  employees at issue  are exempt          under the "professional employee" exemption of    13(a)(1) of the          Act.                    This  case arose  when the  United States  Secretary of          Labor ("the Secretary") brought this action against Newspapers of          New England, Inc. d/b/a The  Concord Monitor ("The Monitor"), and                                  ____________________   ___________          George  Wilson,  the  newspaper's  publisher,  claiming  that The                                                                        ___          Monitor   had  willfully   violated  the  overtime   and  records          _______          requirements  of the FLSA  with respect to the  wages it had paid          its reporters, editors, and photographers.  The Monitor's primary                                                      ___________          defense was that  the FLSA did not cover its  actions because the          employees at issue  were exempt professionals.  The  Monitor also                                                          ____________          maintained that  any FLSA violations  it may have  committed were          not willful.                    The case was tried to the bench.  In an  opinion issued          seven years after the  trial concluded, the court found  that The                                                                        ___          Monitor's   newsroom  employees   were   not   entitled  to   the          _______          professional exemption  from the Act's overtime  requirements and          awarded back  wages and  liquidated damages to  twelve employees.          The court also found,  however, that the violations had  not been          committed willfully  and consequently limited the  damages to the                                         -3-          two-year period before  the filing  of the suit  rather than  the          three-year period  applicable to  willful violations.   The court          refused to award damages for violations occurring after the close          of  the  DOL's  compliance   investigation,  and  it  denied  the          Secretary's  request for  a  permanent injunction  against future          violations.  These cross appeals followed.                    Although the  district court  was inexplicably slow  in          issuing  its  less-than-meticulous  opinion, we  affirm  for  the          reasons that follow.                                  FACTUAL BACKGROUND                                  FACTUAL BACKGROUND                    The  Monitor is  an award-winning  small-city newspaper                    ____________          with a  daily  circulation in  excess  of 4,000  copies.   It  is          published in  Concord, New  Hampshire, by the  defendants, George          Wilson  and Newspapers  of  New  England,  Inc.    In  1974,  the          Department of Labor ("DOL")  investigated the newspaper under the          FLSA  and  warned  it  of  possible  overtime  and  recordkeeping          violations.  Although the DOL did not press charges at that time,          it informed the paper of the relevant FLSA requirements.                    In late 1979 and early 1980, the DOL again investigated          the pay practices in The  Monitor's newsroom.  This investigation                               ____________          convinced the DOL that certain newsroom employees were  not being          paid  for  all their  overtime  hours.    Consequently,  the  DOL          commenced  this litigation.   The newsroom employees  at issue in          the  Secretary's  action were  reporters, low-level  editors, and          photographers.                    The  evidence  at  trial  consisted  of  the testimony,                                         -4-          either live or through deposition, of fourteen newsroom employees          and several experts in the field of journalism.                    1.  Newsroom Employees:                    1.  Newsroom Employees:                    The  Monitor's  editor-in-chief, Mike  Pride, testified                    ____________          that he requires a college degree  with an emphasis in writing to          work as a staff writer or editor.  Nevertheless, he conceded that          a  journalism degree was not a prerequisite for employment at The                                                                        ___          Monitor.  In  fact, Pride and at least one-half  of the reporters          _______          who  testified had  degrees in  subjects other  than journalism.2          For most of The Monitor's reportorial staff, this employment  was                      ___________          their first in the field of journalism.                      a.  Staff Writers                      a.  Staff Writers                          _____________                    When  hired, The  Monitor's reporters were  assigned to                                 ____________          tasks  ranging  from  writing features  to  covering legislative,          municipal, and town governments and agencies.  Some of their work          was of  a routine nature, such  as compiling lists of  the titles          and  times of local showings  of motion pictures.   The reporters          testified   that  they   worked  essentially   unsupervised,  had          authority  and discretion  over  what  they  did and  wrote,  and          decided how  their assignments would be  executed.  Nevertheless,          most  of them  testified that  their time  was spent  on "general          assignment" work and  their writing was  mainly focused on  "hard          news."                                        ____________________          2  Of the 32  employees for whom back wages were sought, six held          Masters  degrees, four of which were in journalism; 16 had earned          Bachelor's degrees;  one employee  held an Associate  degree; one          had taken some college  courses; and one had taken  courses at an          institute of photography.                                         -5-                    For  example,  staff writer  Margaret  Burton testified          that during her first  year, as an education reporter,  she wrote          about  education  issues  and  covered the  State  Department  of          Education as well  as the  meetings of the  local school  boards.          When she  was  later assigned  to  cover court  proceedings,  she          reported  "who was  charged, what  the charges  were and  who the          witnesses were and what they said."                    Sharon Goss testified that  she wrote "feature stories"          when she first started at the paper.  She described these stories          as having "more of a  fill the page kind of mentality .  . . than          go out and  do something  really creative."   Ms. Goss  testified          that  when she  later  became a  regional  reporter, she  covered          government   and  town  planning  meetings,  visited  offices  of          selectmen, called people on the phone about pertinent issues, and          read  through  courthouse  documents  concerning  lawsuits  filed          against towns.                    Randall Keith  testified that during his  first year at          The  Monitor  he  spent  approximately 90  percent  of  his  time          ____________          covering city hall  and the remainder  covering police and  other          general assignment  stories.   Later, he  split his  time between          business writing and covering the police beat.  He testified that          none of his  writing was highly  complex and  that it could  have          been done by anyone with general training and ability.                      b.  Editors                      b.  Editors                          _______                    Lila  Locksley  testified  that  her  main duties  were          reading wire stories for  grammatical and factual errors, writing                                         -6-          headlines,  and  making improvements  so  that  the stories  were          shorter  or more readable.  She also  performed layout work.  She          testified that the layout work consisted of editing  the stories,          writing  headlines, sizing photographs,  and writing the captions          that appeared beneath the photographs.                    Nancy  Druelinger  offered  similar testimony,  stating          that most of her  time was spent writing headlines,  reading over          and rewriting wire  stories, and laying out the pages.   She also          stated that  it was  her responsibility  to decide  which stories          would appear in  the paper.  She  testified that she  thought her          duties as an editor required imagination, creativity, and talent.          She  stated that decisions with  regard to legal  issues (such as          whether   a   story  was   potentially   libelous),  taste,   and          newsworthiness were all within her discretion.                      c.  Photographers                      c.  Photographers                          _____________                    Photographer Tom  Sobolik testified that 70  percent of          his work was assigned and that he had no input as to which photos          would be used in  the newspaper.  While Mr.  Sobolik acknowledged          that  there are  creative aspects  to photojournalism,  he stated          that  "a large  proportion of  it is  pretty run-of-the-mill  and          pretty standardized."                    Throughout the relevant period, Ken Williams spent most          of  his   time  shooting  sports,  exteriors   and  interiors  of          buildings,  and politicians.   Mr.  Williams testified  that more          than 50 percent of his time was spent in the developing of photos          in  the darkroom.  In Mr. William's opinion, "there's very little                                         -7-          news photography which is art" because "a news photographer tries          to  photograph reality,  as  it  happens, without  embellishment,          without taking sides."                    2.   The Experts' Testimony                    2.   The Experts' Testimony                    The  Secretary   offered  the  testimony   of  Ben   H.          Bagdikian,  Dean of  the  Graduate School  of  Journalism at  the          University of California at Berkeley ("Dean Bagdikian").  In Dean          Bagdikian's  opinion, the majority of journalists do not meet the          qualifications  for  professional  exemption  from  the  overtime          provisions  of the  FLSA.  He  distinguished journalism  from the          traditional professions, such as law and medicine, in which there          is  an  accumulated body  of knowledge  and  a canon  which every          practitioner is required  to know.   He stated  that there is  no          body of scholarly  work which  a journalist is  required to  know          before he may practice.   Rather, a journalist must  be a skilled          and accurate observer, have  good judgment, and be able  to write          clearly.                    Dean Bagdikian also testified  that journalism is not a          field in  which the employee's work product  depends primarily on          invention,  imagination,  or  talent.   In  his  view,  the  vast          majority of newspaper reporting centers around clear, disciplined          observation of public  events and people.   He further  testified          that although there have been significant and substantial changes          in the field of journalism, these changes do not warrant changing          the  definition  of  professional  or  changing  the  Secretary's          position regarding employees in the field of journalism.                                         -8-                    The  Monitor  offered  the testimony  of  Robert  Neale                    ____________          Copple,  Dean of the College  of Journalism at  the University of          Nebraska at Lincoln ("Dean Copple").  Dean Copple  testified that          the current field of  journalism is vastly different than  it was          in the 1940's.  He  pointed out that nearly 90 percent  of modern          journalists have  college degrees.   In comparison,  he estimated          that only 30  percent of  newsroom employees in  the 1940's  were          college  graduates.  He further testified that, on the whole, the          journalism  done by  the staff  at The  Monitor was  creative and                                             ____________          thought-provoking, requiring both imagination and talent.                    3.  The Monitor's Overtime Policy                    3.  The Monitor's Overtime Policy                        ___________                    Coverage of  legislative sessions and  meetings of  the          city council often  caused the reporters assigned to these events          to  work more than forty hours weekly.  Although weekly timecards          were   collected  for   each  newsroom   employee,  The   Monitor                                                              _____________          discouraged overtime,  and suggested  that those who  worked more          than  40 hours should seek compensatory time in lieu of overtime.          That is, they were supposed to work fewer hours on the other days          of  the week  to reduce their  total weekly  hours to  forty.  At          least three of the witnesses who testified had been told by their          superiors  to alter the time cards submitted to reduce the amount          of  overtime hours  originally listed  therein.   Those employees          also testified that they  were occasionally reprimanded when they          did report overtime and  told to alter their weekly  timecards so          that no overtime hours would be included.                    On  other occasions,  time cards  for a  given employee                                         -9-          were  completed by  a co-employee, who  necessarily did  not have          accurate  information  as to  the  actual  hours worked  by  that          employee.   In light of these circumstances, many of the newsroom          employees did not bother  to prepare and file an  accurate record          of all hours, including overtime, worked weekly.                    Employees  did receive the compensation required by the          FLSA  for the overtime hours that they actually recorded on their          weekly time  cards.   Mike Pride, The  Monitor's editor-in-chief,                                            ____________          testified that  it was The Monitor's policy  to pay overtime.  He                                 ___________          stated that overtime  was to be  authorized in advance,  whenever          possible,  but  that  the   overtime  was  always  paid,  whether          authorized or unauthorized.  Mr. Pride testified that this policy          existed to control the cost of overtime.                                PROCEDURAL BACKGROUND                                PROCEDURAL BACKGROUND                    On  June 22,  1981, the  Secretary brought  this action          against  The   Monitor,  and   George  Wilson,   the  newspaper's                   _____________          publisher.  The  complaint alleged that, since February  4, 1978,          the newspaper  had committed  willful violations of  the overtime          and  recordkeeping  provisions  of   the  FLSA,  and  that  these          violations  were continuing.   The  Secretary sought  a permanent          injunction against  the violations, and  an award of  back wages,          along with  interest and  liquidated damages.   Additionally, the          Secretary claimed that three years of back  pay were appropriate,          rather than the normal two, because The Monitor's FLSA violations                                              ___________          had been willful under 29 U.S.C.   255(a).                    In  its  answer,  The  Monitor  denied  the Secretary's                                      ____________                                         -10-          allegations  and  asserted as  an  affirmative  defense that  the          employees were exempt from the applicable regulations of the Act,          that any violation was the  result of good faith reliance on  the          Department's "interpretations and/or past rulings," and  that the          claims were time barred.                    The case  was tried to  the bench.  With  regard to the          alleged FLSA  violations at The Monitor,  the Secretary presented                                      ___________          the testimony  of Department of Labor  ("DOL") Compliance Officer          Scott  Wilkinson,  and  thirteen  reporters,  photographers,  and          editors  employed  by The  Monitor.   Throughout  the  trial, the                                ____________          Secretary  denied The  Monitor's  claim that  its employees  were                            ____________          exempt  professionals.   For  over  forty  years the  Secretary's          position,  set forth in non-binding departmental interpretations,          had  been  that  the  majority  of  journalists  are  not  exempt          professionals under  the FLSA.   The Secretary stood  behind this          position  and  presented expert  testimony  in support  of  it at          trial.    The  Secretary   also  attempted  to  present  employee          testimony concerning  alleged  FLSA violations  occurring at  The                                                                        ___          Monitor after January 26, 1980, the last day covered by the DOL's          _______          investigation.   The Monitor objected to  this testimony, arguing                           ___________          that the Secretary could not enlarge its claims  without amending          its  complaint.    The   district  court  allowed  the  proffered          testimony  but  reserved a  final ruling  on  the matter  for its          opinion.                    In its  defense, The Monitor primarily  argued that the                                     ___________          Secretary's   forty-year-old   journalism  interpretations   were                                         -11-          obsolete  and  did not  reflect  the rigors  and  complexities of          modern  journalism.  The Monitor  moved the court  to declare the                               ___________          interpretations  null and  void  and hold  that  the majority  of          modern journalists  qualify  as exempt  professionals  under  the          FLSA.  As a fallback position, The Monitor contended, albeit less                                         ___________          vigorously,   that  its   employees  were   exempt  professionals          regardless  of  whether  the  court  overturned  the  Secretary's          interpretations.    The Monitor  also  maintained  that any  FLSA                              ___________          violations it may have committed were not willful.                    Although the trial was  completed in 1986, the district          court  did  not  issue  its  opinion  and  final  judgment  until          November 3,  1993.3  The court found  that The Monitor's newsroom                                                     ___________                                        ____________________          3   The Monitor contends  that the  seven year delay  between the              ___________          two-week  trial and  the decision  constitutes  reversible error.          This type of delay,  particularly in light of the  sparse factual          findings,  concerns us.   Not  only does  it affect  the parties'          rights to a speedy adjudication of their claims, it detracts from          the public perception of the judicial  system.  Nevertheless, The                                                                        ___          Monitor has failed  to enlighten us as  to how the delay  damaged          _______          the  credibility of  the district  court's findings  or otherwise          prejudiced  The Monitor.  We are in agreement with the sentiments                      ___________          expressed  by the  Ninth  Circuit while  contemplating a  similar          delay:                      We are appalled by  the delay, but we are                      aware  of no case holding that a district                      court commits reversible error  by taking                      too long  to decide  a case.   Indeed, we                      doubt that appellate review could ever be                      an effective means of  enforcing district                      court  timeliness. .  .  . To  vacate and                      remand  a  decision  which  the  district                      court  has  spent several  years crafting                      hardly seems  a sensible means  to reduce                      delay.   To reverse  the decision on  the                      ground  of  delay  would  require  us  to                      presume    that   lengthy    deliberation                      inevitably  leads  to  mistake.  .   .  .                      Although  we  do  not  condone  the  long                                         -12-          employees were not entitled to the professional exemption of  the          Act's overtime requirements and awarded back wages and liquidated          damages to twelve employees.   However, the court found  that the          violations had  not  been committed  willfully  and  consequently          limited the damages to  the two-year period before the  filing of          the suit  rather than the three-year period applicable to willful          violations.  The  court refused to  award damages for  violations          occurring after the close  of the DOL's compliance investigation,          and it denied the Secretary's  request for a permanent injunction          against future violations.                    In   finding  that  the   employees  were   not  exempt          professionals,  the court  relied  on the  Secretary's journalism          interpretations as persuasive  authority.  These  interpretations          state in pertinent part:                      Newspaper  writing  of  the  exempt  type                      must,   therefore,    be   'predominantly                      original  and   creative  in  character.'                      Only   writing   which   is   analytical,                      interpretative  or highly  individualized                      is considered to be creative in nature. .                      .   .      Newspaper   writers   commonly                      performing  work  which  is original  and                      creative  within the  meaning of    541.3                      are   editorial    writers,   columnists,                      critics,  and   'top-flight'  writers  of                      analytical and interpretative articles.                      (2) The reporting of news,  the rewriting                                        ____________________                      delay,  we  are  not  willing  to  assume                      without  strong independent  support that                      the  district  court  departed  from  its                      proper  role  and  considered   only  the                      evidence that was easiest to recall.          Phonetele,  Inc. v. American Tel.  & Tel. Co.,  889 F.2d 224, 232          ________________    _________________________          (9th Cir.), cert. denied, 112 S. Ct. 1283 (1992).                      ____________                                         -13-                      of stories received from various sources,                      or  the  routine   editorial  work  of  a                      newspaper  is not  predominantly original                      and  creative  in  character  within  the                      meaning of   541.3 and must be considered                      as nonexempt work.          29 C.F.R.   541.303(f) (1975).4                    The  district court  rejected The  Monitor's contention                                                  ____________          that the  interpretations should  be declared invalid  because of          their age.   Rather, the  court accepted  the interpretations  as          persuasive authority  of how to apply  the professional exemption          in  the  field  of  journalism.    Once  credited  as  persuasive          authority, the  Secretary's interpretations  all but decided  the          exemption issues.   The Monitor presented  little or no  evidence                              ___________          suggesting    that    its   employees    performed   "analytical,          interpretative  or  highly individualized"  work.    Nor did  The                                                                        ___          Monitor   aver  that  its   reporters  were  "editorial  writers,          _______          columnists, critics,  and 'top-flight' writers  of analytical and          interpretative  articles."    The  Monitor  made  no  significant                                        ____________          attempt   to   differentiate   the   work   of   its   reporters,          photographers, and editors from the work done  at every newspaper          throughout the country.   The Monitor's trial strategy hinged  on                                    ___________          its dogmatic attempt  to debunk the Secretary's  interpretations,          and  when this failed, its chances of prevailing on the exemption          issues dwindled.                                        ____________________          4   On October 9,  1992, the interpretive  regulations, 29 C.F.R.            541.301,  541.302  and  541.303,  were   redesignated,  without          change,   as  29   C.F.R.      541.300,   541.301  and   541.302,          respectively.    57 Fed.  Reg.  46744 (1992).    We refer  to the          earlier codification  because it is used  throughout the parties'          briefs and the district court opinion.                                         -14-                    Following  the  entry  of   final  judgment,  both  the          Secretary  and The Monitor filed  timely notices of  appeal.  The                         ___________          Secretary  appealed  the   district  court's  finding  concerning          willfulness, its refusal  to issue an injunction, and its refusal          to  award damages for violations occurring after the close of the          DOL's   compliance  investigation.    The  Monitor  appealed  the                                                ____________          district  court's decision  that  its employees  were not  exempt          professionals.    The  Monitor's   appeal  reiterates  its  trial                            ____________          strategy  and   rests  primarily  on  the   contention  that  the          Secretary's   journalism   interpretations  have   been  rendered          obsolete by  the technological and  societal changes of  the last          forty years.  The  Newspaper Guild AFL-CIO filed an  amicus brief          in support of  the Secretary while  the Newspaper Association  of          America filed a brief supporting The Monitor.                                           ___________                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                    Appeals involving  pure questions of law  are generally          reviewed de  novo.  In  re extradition of Howard,  996 F.2d 1320,                   ________   ____________________________          1327 (1st  Cir. 1993) (citation  omitted).  In  contrast, appeals          involving straight  factual determinations require  us to  accept          the trier's resolution unless shown to be clearly erroneous.  Id.                                                                        ___          (citation omitted).                    The case  before us presents several  issues containing          mixed questions of fact  and law.   As we have previously  noted,          these  issues require a somewhat nuanced standard of review.  See                                                                        ___          id.  "[A]ppeals in  the federal court system are  usually arrayed          ___          along  a degree-of-deference  continuum, stretching  from plenary                                         -15-          review at one pole  to highly deferential modes of  review (e.g.,                                                                      ____          clear error, abuse  of discretion)  at the opposite  pole."   Id.                                                                        ___          The standard  of  review  we  apply to  mixed  questions  usually          depends  on  "where  they  fall  along   the  degree-of-deference          continuum: the more fact dominated the question,  the more likely          it  is that the trier's resolution  of it will be accepted unless          shown to be clearly erroneous."  Id. at 1328.                                           ___                                         -16-                                      DISCUSSION                                      DISCUSSION                    I.  The FLSA Exemptions                    I.  The FLSA Exemptions                      A.  The Statutory Framework                      A.  The Statutory Framework                          _______________________                    The  overtime  provisions  of  the  FLSA establish  the          general rule that  employees must  be compensated at  a rate  not          less  than  one and  one-half times  their  regular rate  for all          overtime hours.  29 U.S.C.    207(a)(1).  Overtime is  defined as          any employment in excess of  40 hours in a single workweek.   Id.                                                                        ___          However, these  overtime compensation provisions do  not apply to          "any employees employed in a bona fide executive, administrative,          or professional capacity  . . .  (as such  terms are defined  and          delimited from time to  time by regulations of the  Secretary [of          Labor] . . .)."  29 U.S.C.   213(a)(1).  The  employer in an FLSA          case bears  the  burden of  establishing that  its employees  are          exempt,  and   because  of  the  remedial  nature  of  the  FLSA,          exemptions are  to be  "narrowly construed against  the employers          seeking to  assert them  and their application  limited to  those          establishments  plainly and unmistakably  within their  terms and          spirit."  Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960);                    ______    __________________          Secretary of Labor v. DeSisto, 929 F.2d 789, 797 (1st  Cir. 1991)          __________________    _______          (citations omitted).                    The specific requirements of the professional exemption          are not set  forth in the statute.   Rather, they are articulated          in  the regulations  and interpretations  of the Secretary.   The          Secretary's  regulations are promulgated  pursuant to  an express          delegation of legislative authority and must be given controlling                                         -17-          weight unless  they are  found  to be  arbitrary, capricious,  or          contrary to the statute.  See Chevron U.S.A. v. Natural Resources                                    ___ ______________    _________________          Defense Council, Inc., 467  U.S. 837, 843-44 (1984).   Unlike the          _____________________          regulations,  however,  the Secretary's  interpretations  are not          conclusive, even  in  the cases  with which  they directly  deal.          Skidmore v.  Swift & Co.,  323 U.S. 134, 139-40  (1944).  Rather,          ________     ___________          they merely set forth the official position of the DOL on how the          regulations    should   be   applied    in   specific   contexts.          Nevertheless,  the courts  may refer  to the  interpretations for          guidance.  See id.                     ___ ___                    The  relevant legal guidelines  for determining whether          an employee  is  an  exempt  professional are  described  in  the          Secretary's  regulation   29  C.F.R.     541.3.     The  relevant          interpretations are set forth at 29 C.F.R.   541.301, 541.302 and          541.303.  The regulation enumerates several types of professional          exemptions,  two  of  which  are  relevant  here:  the  so-called          "learned professional" and "artistic professional" exemptions.                      1.  The Learned Professional Exemption                      1.  The Learned Professional Exemption                    The   learned   professional   exemption   deals   with          occupations   which   have  specific   educational  requirements,          including  law,  accounting, engineering,  architecture, nursing,          and medicine.   Reich v. Gateway  Press, Inc.,  13 F.3d 685,  698                          _____    ____________________          n.15 (3d Cir. 1994).   The regulation states that  this exemption          applies  to employees  whose "primary  duty" consists  of "[w]ork          requiring  knowledge of  an  advance [sic]  type  in a  field  of          science or learning customarily acquired by a prolonged course of                                         -18-          specialized  intellectual instruction and study, as distinguished          froma general academic education. . . ." 29 C.F.R.   541.3(a)(1).                    The    interpretations    state   that    "[t]he   word          'customarily'  implies that  in the  vast majority  of  cases the          specific academic  training is  a prerequisite for  entrance into          the  profession."   29  C.F.R.    541.302(d).   Moreover,  "[t]he          typical symbol of  the professional training  and the best  prima          facie evidence of  its possession is, of course,  the appropriate          academic degree,  and in  these professions an  advanced academic          degree is a standard (if not universal) prerequisite."  29 C.F.R.             541.302(e)(1).  The  interpretations specifically declare that          the  exemption  does  not  encompass  "such  quasi-professions as          journalism in which the bulk of the employees have acquired their          skill  by  experience  rather  than  by  any  formal  specialized          training."    29  C.F.R.    541.302(d).    Further,  "[n]ewspaper          writers,  with   possible  rare  exceptions  in   certain  highly          technical fields,  do not meet the  requirements of   541.3(a)(1)          for exemption  as professional employees of  the 'learned' type."          29 C.F.R.   541.303(f)(1).                      2.  The Artistic Professional Exemption                      2.  The Artistic Professional Exemption                    The artistic exemption applies to professionals working          in a "recognized field of artistic endeavor."  29 C.F.R.   541.3.          Exempt  artistic  professionals  may  be found  in  many  fields,          including  music,  writing,  the  theater, and  the  plastic  and          graphic arts.                    The  regulation outlines both a short and long test for                                         -19-          determining  whether   an  employee  qualifies  as   an  artistic          professional.  The  long test  is applied to  employees who  earn          weekly salaries of  at least $170 but less than  $250.  The short          test is used for  employees whose weekly salary is  not less than          $250.5   Both  tests demand  that the  employee's "primary  duty"          consist  of  work requiring  "invention,  imagination, or  talent          . . . ."   29 C.F.R.   541.3.   The long test  also requires that          the employee's primary  duty consist of "[w]ork that  is original          and creative in character . . . ."  29 C.F.R.   541.3(a)(2).                    The interpretations state that "[o]nly writing which is          analytical,  interpretive or highly  individualized is considered          to  be creative  in nature.  .  . .   Newspaper  writers commonly          performing work which is original and creative within the meaning          of   541.3 are editorial writers, columnists,  critics, and 'top-          flight'  writers of  analytical and  interpretive articles."   29          C.F.R.    541.303(f)(1).     With   regard  to   the  "invention,          imagination,    or    talent"   requirement,    the   Secretary's          interpretation says:                      In the case  of newspaper employees,  the                      distinction  here  is   similar  to   the                      distinction observed . . .  in connection                      with  the  requirement that  the  work be                      "original  and  creative  in  character."                      Obviously  the  majority of  reporters do                      work    which   depends    primarily   on                      intelligence,  diligence,  and  accuracy.                                        ____________________          5  As the Third Circuit noted, "[t]he short test was added to the          FLSA in 1949 in large part because the DOL felt that salary level          turned out to be  a good proxy for determination  of professional          status."   Gateway Press, Inc., 13 F.3d at 698 n.16.  That is, in                     ___________________          the  DOL's judgment, higher salaried employees are more likely to          meet all the requirements of the exemption.  Id.                                                       ___                                         -20-                      It  is  the minority  whose  work depends                      primarily on  "invention, imagination, or                      talent."          29 C.F.R.   541.303(d).                                         -21-                      B.  The Authority of the Journalism Interpretations                      B.  The Authority of the Journalism Interpretations                          _______________________________________________                    The  Secretary's  journalism  interpretations have  not          changed  in any  material  respect since  1949,  long before  the          newspaper industry evolved  into its current  form.  The  parties          vigorously dispute what weight, if any, courts  should give these          interpretations when they apply the regulation.  The Monitor asks                                                           ___________          us to declare that  the interpretations are obsolete  and invalid          because they do not reflect the complexities and rigors of modern          journalism.  The Secretary  contends that the interpretations are          still  highly  relevant because  the  technological  and societal          changes of the last  forty years have not altered  the day-to-day          duties of the majority of reporters.                    This is the central issue on appeal.  Once the district          court  accepted  them  as persuasive  authority,  the Secretary's          interpretations were  nearly conclusive on the  exemption issues.          The  Monitor made  a  less extensive  effort  to prove  that  its          ____________          employees   performed   "analytical,  interpretative   or  highly          individualized" work.  The Monitor made no significant attempt to                                 ___________          differentiate  the  work  of  its  reporters,  photographers, and          editors  from the  work done  at every  newspaper throughout  the          country.  Therefore, in light of The Monitor's trial strategy, if                                           ___________          we  decline to  invalidate  the  journalism interpretations,  the          record  will almost certainly  compel us  to affirm  the district          court's decision on the exemption issues.                    As   we   noted   above,   although   the   Secretary's          interpretations are not controlling, courts may refer to them for                                         -22-          guidance.   Skidmore  v. Swift  & Co.,  323 U.S.  at 139-40.   In                      ________     ____________          making a similar determination,6 the Supreme Court noted:                      [w]e    consider   that    the   rulings,                      interpretations   and  opinions   of  the                      Administrator under this  Act, while  not                      controlling upon the  courts by reason of                      their authority, do constitute a  body of                      experience and informed judgment to which                      courts and litigants may  properly resort                      for  guidance.    The  weight of  such  a                      judgment in a particular case will depend                      upon  the  thoroughness  evident  in  its                      consideration,   the   validity  of   its                      reasoning,  its consistency  with earlier                      and later pronouncements,  and all  those                      factors which give it power  to persuade,                      if lacking power to control.          Skidmore,  323  U.S.  at 140.    The  Monitor  contends that  the          ________                         ____________          district court  misapplied Skidmore.   Specifically, The  Monitor                                     ________                  ____________          asserts that any reliance  on the Secretary's interpretations was          erroneous  because they  are "outdated,  inconsistent  with other          agency pronouncements, and contain vague and undefined terms."7                                        ____________________          6  In Skidmore,  the Supreme Court was evaluating  the persuasive                ________          weight  of the opinions, interpretations, and rulings of the Wage          and Hour Administrator under the FLSA.          7   We  are  unpersuaded by  The  Monitor's contention  that  the                                       ____________          Secretary's  interpretations should have been disregarded because          they  are  inconsistent  with  other  agency  pronouncements  and          internally inconsistent.             There  is no rule of law requiring an administrative agency to          give  a  term  the  same  definition  in  all  contexts.    "When          construing  the  FLSA  and  its exemptions,  courts  should  look          primarily  to  the  purpose   of  the  act  itself  --   and  not          interpretations  of  the same  or a  similar  term made  in other          contexts."  Reich v. Gateway Press, Inc., 13 F.3d at 699 n.17.                        _____    ___________________          With  regard  to  the  assertion  that  the  interpretations  are          internally  inconsistent, we  follow the  reasoning of  the Third          Circuit:                      "We     also    reject     the    amicus'                      characterization  of  the interpretations                                         -23-                    As  a preliminary  matter, we  discuss the  standard of          review appropriate  for appellate scrutiny of  a district court's          Skidmore analysis.8   Although  we have not  previously addressed          ________          this  issue, the Fifth Circuit  provides meaningful guidance.  In          Dalheim v.  KDFW-TV, a television station  charged with violating          _______     _______          the FLSA's overtime provisions made essentially the same argument          asserted  by  The  Monitor: that  "the  district  court gave  the                        ____________          interpretations  undue  weight,  thus   blinding  itself  to  the          realities of modern  broadcast journalism."  918  F.2d 1220, 1228          (5th  Cir. 1990).   The  Fifth Circuit  reasoned that  a district          court's Skidmore  analysis is  merely a fact-specific  inquiry to                  ________                                        ____________________                      as  being  'self-contradictory'   because                      they  state  that  'many'  reporters  are                      exempt   while  'many'  are   not.    The                      interpretations merely recognize that the                      determination of whether  a reporter is a                      professional does not depend on the title                      that a  paper gives a reporter.   Rather,                      it  instead  depends  upon  the  specific                      characteristics  of  a  given  reporter's                      job."          Id.          ___          8   There are, in  fact, two inquiries that  must be made  when a          court  is  determining   what  weight  should  be   given  to  an          administrative interpretation.   First,  a court will  declare an          interpretation  invalid   if  it   is  found  to   be  arbitrary,          capricious,  or  contrary   to  the  statute.    See   Martin  v.                                                           ___   ______          Occupational  Safety and Health Review  Comm'n, 499 U.S. 144, 158          ______________________________________________          (1991)  (holding  that  the  "Secretary's  interpretation  of  an          ambiguous  regulation   is  subject  to  the   same  standard  of          substantive review  as any other exercise  of delegated lawmaking          power."); Chevron U.S.A.  v. Natural  Resources Defense  Council,                    ______________     ____________________________________          Inc., 467 U.S. 837, 843-44 (1984).  Second, the court applies the          ____          Skidmore analysis to determine  the level of deference  it should          ________          accord a valid administrative interpretation.  Here, we  are only          concerned with the second  inquiry because neither party contends          that the Secretary's interpretations are invalid under the first.                                         -24-          determine whether  the interpretation reflects an  analogy useful          in  deciding the  case before  it.   Id.   Thus, any  "attempt to                                               ___          debunk  the  analogy between  the  interpretation's  portrayal of          broadcasting and  journalism as  they existed  in the 1940's  and          broadcast journalism as it exists today is a veiled attack on the          district court's findings of fact."  Id.  Consequently, because a                                               ___          district court's  Skidmore analysis  is fact-based, we  review it                            ________          subject  to the  clearly erroneous  standard  of Federal  Rule of          Civil Procedure 52(a).                    Both the Secretary and The  Monitor presented extensive                                           ____________          expert  testimony as  to whether  the technological  and societal          changes of  the past forty  years have  rendered the  Secretary's          journalism interpretations obsolete.  The Secretary presented the          testimony  of  Ben  Bagdikian,  Dean of  the  Graduate  School of          Journalism  at   the  University   of  California   at  Berkeley.          Mr. Bagdikian testified that although the field of journalism has          changed  radically, these  changes do  not warrant  modifying the          Secretary's view that  most journalists do not  qualify as exempt          professionals under  the FLSA.   In  his view,  the focus  of the          majority of  journalists is the same today  as it was forty years          ago:   to report disciplined  observations of  public people  and          public events.  This  testimony essentially ends appellate review          of  the matter.  It was neither severely impeached nor inherently          implausible,  and  "[o]nce credited,  it  supported  the district          court's rationale  almost  singlehandedly."   Rivera-G mez v.  de                                                        ____________     __          Castro,  900 F.2d  1, 4  (1st Cir. 1990).   Although  The Monitor          ______                                                ___________                                         -25-          presented conflicting testimony, the district court's decision to          accept the interpretations as persuasive authority cannot be said          to be clearly erroneous.9                      C.  The Professional Exemptions                      C.  The Professional Exemptions                          ___________________________                    Whether The Monitor's employees are within the scope of                            ___________          the FLSA professional exemption  is a mixed question of  fact and          law.  Gateway  Press, Inc., 13  F.3d at 691.   In reviewing  this                ____________________          issue,  we elect to follow the Fifth Circuit's approach, in which          the  appellate court separates out the questions of fact from the          ultimate  legal  conclusion  and  applies   a  clearly  erroneous          standard to the  former while exercising plenary  review over the          latter.  Dalheim, 918 F.2d at 1226.                   _______                    As the  Fifth Circuit  noted, there are  three distinct          types of findings involved in determining whether  an employee is                                        ____________________          9  The Monitor  also contends that the district  court mistakenly             ___________          confused  a  Wage  and Hour  Administrator's  interpretation,  29          C.F.R.    541.303, with the  Secretary of Labor's  regulation, 29          C.F.R.    541.3, and  thus applied  incorrect legal  standards in          determining that The Monitor's employees were not exempt from the                           ___________          overtime provisions of the FLSA.  We    find   this    contention          completely  without  merit.    As we  noted  above,  the district          court's  Skidmore   analysis  and  subsequent   reliance  on  the                   ________          Secretary's interpretations were not in error.  Our review of the          record and  the district  court's opinion  indicates that  it was          well  aware  of  the  distinction  between  the  regulations  and          interpretations.   Indeed,  the district  court's  opinion quotes          from Skidmore immediately  prior to its refusal to  disregard the               ________          Secretary's interpretations.  Reich v. Newspapers of New England,                                        _____    __________________________          Inc., 834 F. Supp. 530, 535 (1993).  The only evidence supporting          ____          The  Monitor's contention is  the fact that  the district court's          ____________          opinion incorrectly refers to the interpretations as regulations.          See,  e.g., id.  at 534-35.   These misstatements,  considered in          ___   ____  ___          light of the  record and the district  court's Skidmore analysis,                                                         ________          do   not  indicate   that   the  district   court  confused   the          interpretations  and regulations.  Rather, this  is more likely a          matter   of   miscitation  than   an   indication   of  a   basic          misunderstanding.                                         -26-          exempt.    Id.   First,  the  district  court  makes findings  of                     ___          historical fact, regarding, for example, the day-to-day duties of          the  employees.   Id.   These  are  reviewed under  the  "clearly                            ___          erroneous"  standard of  Federal Rule  of Civil  Procedure 52(a).          Id.; see also Icicle  Seafoods v. Worthington, 475 U.S.  709, 714          ___  ________ ________________    ___________          (1986); Donovan v. Burger King Corp., 672 F.2d 221, 227 (1st Cir.                  _______    _________________          1982).    Second,  to  apply  the  Secretary's  regulations,  the          district court  must draw conclusions from  the historical facts.          Dalheim,  918 F.2d at 1226.   For example,  whether an employee's          _______          work  requires  "invention, imagination,  or talent"  and whether          such  work   constitutes   an  employee's   "primary  duty"   are          conclusions drawn from historical  facts.   Id.   Such inferences                                                      ___          are also  subject to  the clearly  erroneous standard of  review.          Id.    Lastly,  the  district  court  makes  the  ultimate  legal          ___          conclusion  of whether an employee  is exempt.   Although this is          based  on both historical facts  and factual inferences,  it is a          conclusion of law, over  which we exercise plenary review.   Id.;                                                                       ___          see also Icicle Seafoods,  475 U.S. at 714; Gateway  Press, Inc.,          ________ _______________                    ____________________          13 F.3d at 691.                    Although  the determination  of whether an  employee is          exempt is  clearly tied to  the district court's  factfinding, we          are  acutely aware of our  duty to canvas  the record thoroughly.          Further, we review the district  court's decision to ensure  that          its  factfinding was guided by the proper legal standards.  "[T]o          the extent  that  findings of  fact  can be  shown to  have  been          predicated  upon,  or induced  by, errors  of  law, they  will be                                         -27-          accorded diminished  respect on  appeal."   Dedham  Water Co.  v.                                                      _________________          Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir. 1992).          ____________________________                      1.  Artistic Professional Exemption                      1.  Artistic Professional Exemption                    As we discussed above, 29 C.F.R.    541.3 outlines both          a  short and  long  test  for  determining  whether  an  employee          qualifies  as an artistic professional.  The long test is applied          to employees who  earn weekly salaries of at least  $170 but less          than $250.   The short test  is used for  employees whose  weekly          salary is not less than $250.                    Although the  long  test has  many requirements,10  the                                        ____________________          10    The  long test  exempts  as  an  artistic professional  any          employee:                      (a)  Whose primary  duty consists  of the                      performance of:                                        . . .                      Work that  is  original and  creative  in                      character  in  a   recognized  field   of                      artistic  endeavor  (as  opposed to  work                      which can be produced by a person endowed                      with   general  manual   or  intellectual                      ability and training),  and the result of                      which depends primarily on the invention,                      imagination, or talent  of the  employee;                      and                      (b)  Whose  work requires  the consistent                      exercise  of  discretion and  judgment in                      its performance;  and                      (c)    Whose   work    is   predominantly                      intellectual and varied in  character (as                      opposed   to   routine  mental,   manual,                      mechanical, or  physical work) and  is of                      such character that  the output  produced                      or  the  result  accomplished  cannot  be                      standardized  in  relation  to   a  given                      period of time; and                                         -28-          most  significant for  our analysis are  that (1)  the employee's          primary  duty consist of "[w]ork that is original and creative in          character in  a recognized field  of artistic  endeavor" and  (2)          "the  result  of  which   depends  primarily  on  the  invention,          imagination, or  talent of the  employee . .  . ."   29 C.F.R.             541.3(a)(2); see Gateway Press, Inc., 13 F.3d at 698.                       ___ ___________________                    The short  test for determining whether  an employee is          exempt as an artistic  professional is more simple.   It requires          only that the employee's primary  duty consist of "work requiring          invention,  imagination,  or  talent  in a  recognized  field  of          artistic  endeavor . .  . ."   29 C.F.R.    541.3(e); see Gateway                                                                ___ _______          Press, Inc., 13 F.3d at 698.  The short test does not include the          ___________          requirements of 29 C.F.R.    541.3(b), (c) and  (d) and does  not          require  that the work  be "original and  creative in character."          As the Third Circuit  noted, "[w]hile the tests are  not all that          different,  it seems  clear  that  any  employee  who  is  not  a          professional under the short test will not be one  under the long          test."  Gateway Press, Inc., 13 F.3d at 698.                  ___________________                      a.  Short Test Employees                      a.  Short Test Employees                    The  Monitor   maintains   that  the   district   court                    ____________          erroneously applied  the long test for  artistic professionals to                                        ____________________                      (d)  Who does  not  devote more  than  20                      percent  of  his  hours  worked   in  the                      workweek to activities  which are not  an                      essential   part   of   and   necessarily                      incident   to   the  work   described  in                      paragraphs  (a)  through   (c)  of   this                      section . . . .          29 C.F.R.   541.3 (1975).                                         -29-          three reporters -- David Olinger, Charles Stein, and Paul Carrier          --  whose weekly  salary qualified  them for  analysis under  the          short  test.    The  Monitor  contends  that  the district  court                          ____________          incorrectly   required  that  the   newspaper  writing  of  these          employees be "'predominantly original and creative in character'"          when  the correct  standard merely  required that  the employee's          "primary duty" consist of "work requiring invention, imagination,          or talent in a recognized field  of artistic endeavor."  Reich v.                                                                   _____          Newspapers  of New England, Inc.,  834 F. Supp.  530, 537 (D.N.H.          ________________________________          1993).  The Monitor claims that this was reversible error because                  ___________          the district court erroneously required these employees to meet a          much more difficult standard.                    The district  court's opinion suggests that  it did not          specifically apply  the  short test  to  those employees  of  The                                                                        ___          Monitor  with weekly salaries above $250.  However, as we discuss          _______          below,  our  review of  the record  against  the backdrop  of the          Secretary's interpretations leads us to conclude that these three          employees do  not qualify as exempt  artistic professionals, even          under  the short  test.   Therefore, even  if the  district court          erroneously  applied  the "original  and  creative in  character"          requirement of the long test, this error was harmless.                    The  relevant portion of the  short test requires us to          determine (1) the employee's "primary duty," and  (2) whether the          performance  of  that duty  requires "invention,  imagination, or          talent."  Because the  Secretary stipulated that writing  was the          primary  duty of  these employees,  the  only issue  remaining is                                         -30-          whether   their  writing  required  "invention,  imagination,  or          talent."    With  regard  to  the  "invention,   imagination,  or          talent" requirement, the Secretary's interpretation says:                      In the case  of newspaper employees,  the                      distinction  here  is   similar  to   the                      distinction observed . . .  in connection                      with  the  requirement that  the  work be                      "original  and  creative  in  character."                      Obviously  the  majority of  reporters do                      work    which   depends    primarily   on                      intelligence,  diligence,  and  accuracy.                      It is  the  minority whose  work  depends                      primarily on  "invention, imagination, or                      talent."          29 C.F.R.   541.303.11  The  district court found, and we  agree,          that The Monitor employees did not fulfill this requirement.               ___________                    The record  demonstrates that the  day-to-day duties of          these three reporters consisted primarily of "general assignment"          work.  Among other things,  their stories covered public  utility          commission hearings; criminal and police activity; city and state                                        ____________________          11  We follow the reasoning of the Third Circuit's Gateway Press,                                                             ______________          Inc.  opinion and  reject the  argument that  the interpretations          ____          only apply to the long test:                      "Although  this   interpretation  of  the                      phrase   'invention,   imagination,    or                      talent' seems  to refer to the  phrase as                      it is used in [the long test] rather than                      as it is used  in [the short test], there                      is nothing  to suggest that such a phrase                      has  a  different  meaning  in   the  two                      different   parts  of   the  regulations.                      Indeed,   as   a   matter  of   statutory                      construction,  where one word  is used in                      one   place,  it  should  have  the  same                      meaning  in  another  place in  the  same                      statute . . . There is no reason to think                      that  this  principle should  not equally                      apply to regulations."   Reich v. Gateway                                               _____    _______                      Press,   Inc.,  13   F.3d  at   700  n.18                      _____________                      (citations omitted).                                         -31-          legislative proceedings; business  events, including compiling  a          list  of  people who  had been  promoted;  and local  art events.          Rarely were  they asked to  editorialize about  or interpret  the          events  they covered.  Rather, the focus of their writing was, as          David Olinger phrased  it, "to  tell someone who  wanted to  know          what happened . . . in a quick and informative and understandable          way."   Thus,  we  believe that  these  reporters were  like  the          majority  of reporters in  that their work  "depends primarily on          intelligence,  diligence, and  accuracy."   29 C.F.R.    541.303.          They  were not performing duties  which would place  them in that          minority  of   reporters   "whose  work   depends  primarily   on          'invention,  imaging [sic], or talent.'"   Id.   Although some of                                                     ___          the  work  product of  these  employees demonstrated  creativity,          invention, imagination, and talent, their writing did not exhibit          these qualities on a day-to-day basis.12                    Of course, our decision should not be read to mean that          all journalism work is nonexempt.  The field of newspaper writing          is  certainly a medium capable of sustaining creativity.  We want          to reiterate  that whether an employee is  an exempt professional          is  independent  of  the  title  the  employer  ascribes  to  the          position.   As  the  interpretations point  out, "[t]he  field of                                        ____________________          12  The issue  of whether an  employee is an exempt  professional          forces  the opposing  parties  into paradoxical  positions:   The          management  argues  that  the  employee's work  is  distinct  and          creative,  and  thus does  not  merit  overtime pay;  the  worker          maintains  that  he deserves  overtime  pay because  his  work is          routine and non-specialized.  Both parties are compelled  to make          arguments   contrary  to  their   customary  economic  bargaining          positions.                                         -32-          journalism . . .  employs many exempt  as well as many  nonexempt          employees under the  same or  similar job titles."   29 C.F.R.             303(f).   The determination of whether the exemption applies to a          given employee depends on the specific duties and characteristics          required  by the position rather than its actual title.  However,          "if we were to find that [these] reporters are in the minority of          reporters whose  work requires invention, imagination, or talent,          it is  hard to see what reporters would be left in the majority."          Gateway  Press, Inc.,  13  F.3d  at  700;  cf.  Sherwood  v.  The          ____________________                       ___  ________      ___          Washington Post, 677  F. Supp.  9, 11 (D.D.C.),  rev'd, 871  F.2d          _______________                                  _____          1144 (D.C. Cir.  1989) (The court found  that 13 writers for  The                                                                        ___          Washington  Post  qualified   as  exempt  artistic  professionals          ________________          because   their   writing  was   individual,   interpretive,  and          analytical;  because  success at  The  Post  requires a  "special                                            _________          talent"; and because they  "produce original and creative writing          of high quality  within the meaning  of the regulations  . . . ."          Although this case was reversed because factual disputes rendered          disposition  on  summary  judgment  inappropriate,  it serves  to          highlight the distinction between exempt and non-exempt newspaper          work.).13                                        ____________________          13   The district court recently concluded trial and released its          opinion in Sherwood, holding that Sherwood was an exempt employee                     ________          because  his  reporting  job  at  The  Washington  Post  required                                            _____________________          invention, imagination,  and talent.  Sherwood  v. The Washington                                                ________     ______________          Post, Civil Action No. 86-2701.  Without passing on the merits of          ____          this  decision, we note that  it is distinguishable  on its facts          from  the  present  case.    Most  notably,  the  Sherwood  court                                                            ________          distinguished the work of  reporters at The Washington  Post from                                                  ____________________          the type of small  town reporting addressed by the  Third Circuit          in  Gateway  Press, Inc..    Thus,  the  district court's  second              ____________________          opinion  in Sherwood  again  highlights  the distinction  between                      ________                                         -33-                      b.  Long Test Employees                      b.  Long Test Employees                    The  Monitor  also  contends that  the  district  court                    ____________          misapplied   the  long   test,   and  consequently,   erroneously          determined  that the remainder of  The Monitor employees at issue                                             ___________          in  this case were  not exempt professionals.   Specifically, The                                                                        ___          Monitor  contends that  the  record demonstrates  that the  staff          _______          writers,  photographers, and  editors at  The Monitor  qualify as                                                    ___________          exempt artistic professionals under  a correct application of the          regulation.  We disagree.                    As we noted above, the district court's reliance on the          Secretary's  interpretations  was  not  erroneous.     Therefore,          because we  find that the  district court conducted  its analysis          within the correct legal framework, we review its factfinding for          clear error.                      i.  Staff Writers:                      i.  Staff Writers:                    With regard  to the  staff writers salaried  below $250          per week, their day-to-day  responsibilities were very similar to          those of the staff  writers discussed above.  For  example, staff          writer  Margaret  Burton  testified  that three  fourths  of  her          stories  covered hard news, such as the proceedings of the school          board, educational issues, trials and court hearings, as  well as          the  legislative hearings.  She estimated that only one fourth of          her  writing  constituted  feature  writing   requiring  in-depth          interpretation or analysis.                    Staff writer  Sharon  Goss testified  that  during  her                                        ____________________          exempt and non-exempt work in the field of journalism.                                         -34-          first year at the paper, she spent approximately sixty percent of          her time writing what  she called feature stories.  The topics of          these  stories were  usually  assigned by  an editor,  and rarely          demanded  the  imagination,  interpretation,  or  invention  that          characterizes exempt  newspaper writing.14   The remaining  forty          percent was  divided between "deadline work"  and clerical tasks,          such  as  compiling  local movie  listings.    During the  latter          portion  of her tenure at The Monitor, as an educational reporter                                    ___________          and  a  regional reporter,  she  covered  educational issues  and          government and town planning meetings.                    Staff writer Randall Keith testified that the vast bulk          of his first year at The  Monitor was spent working the city hall                               ____________          beat.   His second year  was divided between  covering the police          beat and  business  writing.   His  third  year was  spent  as  a          regional  reporter,   covering  town  meetings   and  activities.          Overall,  he described his day  to day duties  as being primarily          the type of  general assignment work which could  be accomplished          by anyone with general intellectual training and ability.                    As these  examples make clear,  the employees  salaried          below $250  had substantially the same  responsibilities as those          reporters,   discussed   above,   with   salaries   above   $250.          Consequently, we find  that the record contains ample support for          the  district court's  conclusion that  these reporters  were not                                        ____________________          14  For instance, one story reported on the local attitude toward          the rising price  of hamburgers.   Another story, on a  local man          who had just opened  an art store, centered on  his business, his          goods, and whether he thought it would succeed.                                         -35-          performing  the  type of  work that  would  qualify them  for the          artistic  professional exemption.    Rather,  like their  higher-          salaried counterparts,  they were like the  majority of reporters          in that their work "depends primarily on intelligence, diligence,          and accuracy."  They were not performing duties which would place          them in  that minority of reporters "whose work depends primarily          on 'invention, imaging [sic], or talent.'"                      ii.  Photographers:                      ii.  Photographers:                    We  also  find ample  support  in  the record  for  the          district court's conclusion that the photographers at The Monitor                                                                ___________          were not performing exempt work.   Staff photographer Tom Sobolik          testified that most of his film  was shot at sporting events.  He          also listened to the police radio and photographed any newsworthy          events  it   reported,  including   auto  accidents  and   fires.          Approximately seventy  percent of  Tom Sobolik's  photography was          assigned.  Further,  he testified  that although  there are  some          creative aspects to his photography, "a large proportion of it is          pretty run of the mill and pretty standardized."                    Ken  Williams  testified  that  he spent  most  of  his          picture-shooting time photographing  sporting events, the  pet of          the week,  interiors and exteriors of  buildings, press meetings,          and meetings with the Governor.  He also spent a  large amount of          time in the  darkroom developing  the pictures he  and the  other          photographers had shot.   He conceded that the darkroom  work and          the  majority of his photography did not, in his mind, constitute          artistic work.                                         -36-                    The  testimony  of these  photographers  indicates that          they, like the  staff writers,  were not performing  the type  of          photographic  work which  would qualify  them under  the artistic          exemption.15                      iii.  Editors:                      iii.  Editors:                    The Monitor asserts that the district court erroneously                    ___________          ruled that  three editors were not  exempt artistic professionals          under  the long test despite the Secretary's concession that they          were  exempt under the short  test.  Because  this contention has          absolutely no basis in the record, we reject it.                    Admittedly,  the  Secretary  concluded  that  the three          editors  at issue  --  Sharon Goss,  Nancy  Druelinger, and  Lila          Locksley  -- qualified  for  exemption once  their salaries  rose          above  $250.  Having so concluded, however, the Secretary did not          pursue,  and the court did  not award, back  wages for the period          during  which  these  employees were  paid  over  $250 per  week.          Rather,  the court  concluded that  before their  weekly salaries          rose  above $250,  these editors  were not  performing work  that          qualified  them for  exemption under the  long test  for artistic          professionals,16 which requires  that their primary  duty consist                                        ____________________          15   The  Monitor contends  that  the district  court erroneously               ____________          applied  the long test to  Ken Williams, whose  weekly salary was          above $250.  The opinion does not conclusively indicate what test          was  applied to  Ken Williams.   Nevertheless,  we find  that the          error, if indeed there was one, was harmless.  The work performed          by  Mr.  Williams did  not  require  "invention, imagination,  or          talent," and thus is not exempt, even under the short test.          16  The Monitor's  brief suggests that there is  an inconsistency              ___________          between the  Secretary's decision  not to pursue  back wages  for          editors paid over $250 per week and the district court's decision                                         -37-          of "[w]ork that is original and creative in character" and "which          depends primarily on the invention, imagination, or talent of the          employee . . . ."  29 C.F.R.   541.3(a)(2).                    We find this  conclusion to have  ample support in  the          record.  Ms. Locksley testified that her main duties were reading          wire  stories  for   grammatical  and  factual   errors,  writing          headlines,  and  making improvements  so  that  the stories  were          shorter  or  more  readable.    Ms.  Druelinger  offered  similar          testimony,  stating  that most  of  her  time was  spent  writing          headlines, reading  over and  rewriting wire stories,  and laying          out  the   pages.17     Ms.  Goss's  testimony   was  comparable.          Overall, their day-to-day work was the type of  routine editorial          work  that is generally considered  non-exempt.  See  29 C.F.R.                                                             ___          541.303(f)  (The  reporting of  news,  the  rewriting of  stories          received from various sources, or the routine editorial work of a          newspaper is not predominantly original and creative in character          within the meaning of   541.3 and must be considered as nonexempt          work.).                                        ____________________          that the lower paid editors  were not exempt under the long  test          for artistic  professionals.  Once  again, The Monitor  is wrong.                                                     ___________          The Secretary determined that the higher paid editors were exempt          under the executive  exemption 29 C.F.R.   541.1 -- not the short          test for artistic professionals.          17   Admittedly,  layout and  page design  can qualify  under the          artistic  professional   exemption.    In  fact,   the  Secretary          concluded  that  Tom Chants,  an editor  at  The Monitor,  was an                                                       ___________          exempt artistic professional.  However,  as Druelinger testified,          Chants's work was considerably different  from the work that she,          Ms.  Locksley, and Ms.  Goss performed:  "Tom  Chants, he did the          beautiful art work pages.   He was able to take lots of  time and          did not  do the breaking  news.  He  did the beautiful  features,          layouts and fill.  He had a lot more time to do his pages."                                         -38-                      2.  The Learned Professional Exemption                      2.  The Learned Professional Exemption                    The  district  court  also   held  that  The  Monitor's                                                             ____________          journalists  did  not  qualify  under  the  learned  professional          exemption of 29 C.F.R.   541.3.  In  a footnote to its brief, The                                                                        ___          Monitor  joins  its  amici  supporters in  contending  that  this          _______          determination was error.                    Exempted learned professions  include law,  accounting,          engineering,  architecture, nursing,  and  medicine.   29  C.F.R.            541.302.   The  Monitor would  have us  add journalism  to this                       ____________          list, arguing that  most of its  employees had either  journalism          degrees or liberal arts degrees with an emphasis on writing.                    The learned professional exemption applies to employees          whose "primary  duty" consists of "[w]ork  requiring knowledge of          an  advance  [sic]  type  in  a  field  of  science  or  learning          customarily  acquired  by  a   prolonged  course  of  specialized          intellectual  instruction  and  study, as  distinguished  from  a          general academic education . . . ."  29 C.F.R.   541.3(a)(1).  As          the interpretations make clear, "[t]he word 'customarily' implies          that in the vast majority of cases the specific academic training          is a prerequisite for  entrance into the profession."   29 C.F.R.            541.302(d).  Further, "[t]he typical symbol of the professional          training  and the best prima facie evidence of its possession is,          of  course,  the  appropriate   academic  degree,  and  in  these          professions  an advanced  academic degree  is a standard  (if not          universal)  prerequisite."    29  C.F.R.    541.302(e)(1).    The          interpretations specifically  state that the  exemption does  not                                         -39-          encompass "such quasi-professions as journalism in which the bulk          of the employees  have acquired their skill  by experience rather          than   by  any  formal  specialized  training."     29  C.F.R.             541.302(d).                    While we acknowledge that these interpretations are not          controlling, we join the  substantial number of courts that  have          chosen to follow them on  this issue.  See, e.g.,  Gateway Press,                                                 ___  ____   ______________          Inc., 13  F.3d at 698 (holding  that the "case law  has held that          ____          reporters  do   not  come  within   the  scope  of   the  learned          exemption");  Sun Publishing  Co. v. Walling,  140 F.2d  445 (6th                        ___________________    _______          Cir.),  cert.   denied,  322  U.S.  728   (1944)  (rejecting  the                  ______________          contention that writers and reporters are learned professionals);          Dalheim v. KDFW-TV, 706 F. Supp. 493, 501-02 (N.D. Tex.) (holding          _______    _______          that  despite  the  fact  that many  broadcast  journalists  hold          undergraduate  degrees  and  adhere  to an  established  code  of          ethics, they  are not learned professionals  because, inter alia,                                                                __________          their  training  is  more  akin  to  an  apprenticeship  than  to          intellectual instruction  and study), aff'd, 918  F.2d 1220, 1226                                                _____          (5th Cir. 1990); Freeman v. National Broadcasting Co., Inc.,  846                           _______    _______________________________          F.  Supp. 1109,  1154-55  (S.D.N.Y. 1993)  (In  holding that  the          broadcast journalists  were not exempt learned professionals, the          court  noted  that journalism  interpretations  remain persuasive          despite their age because, inter alia, "experience and on-the-job                                     __________          training  still play  a  substantial  role  in  the  training  of          journalists . . . .").                    In  upholding the  district  court's finding  that  the                                         -40-          journalists  at  The Monitor  do  not qualify  under  the learned                           ___________          professional exemption,  we note that  many experts in  the field          believe  that journalism  can  only be  learned  in the  newsroom          itself.   No  particular academic  degree is  a  prerequisite for          entrance  into  the  field  and applicants  are  not  required to          demonstrate mastery over a  specific body of knowledge.   Rather,          as Dean Bagdikian from  the Graduate School of Journalism  at the          University of  California at  Berkeley testified,  editors hiring          entry-level  journalists are  mainly concerned  with whether  the          applicant's writing samples  demonstrate accuracy,  intelligence,          and an  ability to  write clearly.   Applicants  possessing these          qualities  are the most likely to  absorb the on-the-job training          and  become successful  journalists.   The  importance of  actual          newspaper  experience  as  opposed   to  journalism  courses   is          demonstrated  by the  fact that  top-flight newspapers  generally          hire  only  experienced applicants  with  demonstrable journalism          skills.  See  Sherwood, 677 F.  Supp. at 11.   In light of  these                   ___  ________          considerations, we agree with the district  court's determination          that  the journalists  at  The  Monitor  are not  exempt  learned                                     ____________          professionals.                      3.  Rule 52(a) Findings of Fact                      3.  Rule 52(a) Findings of Fact                          ___________________________                    The Monitor  asserts that  we must vacate  the judgment                    ___________          and remand the case to the district court for its alleged failure          to make the findings  of fact required by  Federal Rule of  Civil          Procedure  52(a).   Rule  52(a) requires  that "[i]n  all actions          tried upon the  facts without a jury  . . . the  court shall find                                         -41-          the facts  specially and state separately its  conclusions of law          thereon . . . ."   Fed.  R. Civ.  P. 52(a).   We have  previously          noted,  however, that the  purpose of the rule  is to apprise the          appellate court of the grounds on which the trial court based its          decision.     Applewood  Landscaping  &  Nursery   Co.,  Inc.  v.                        _______________________________________________          Hollingsworth,  884 F.2d  1502,  1503 (1st  Cir. 1989)  (citation          _____________          omitted).  Therefore,  findings are  sufficient so  long as  they          "indicate the factual basis for the ultimate conclusion."  Kelley                                                                     ______          v. Everglades Drainage District,  319 U.S. 415, 422 (1943).   The             ____________________________          "'judge need  only make  brief, definite, pertinent  findings and          conclusions upon the contested matters; there is no necessity for          over-elaboration  of  detail  or  particularization  of  facts.'"          Applewood  Landscaping, 884 F.2d at 1503 (quoting Fed. R. Civ. P.          ______________________          52(a), advisory committee's note to 1946 Amendment).  "As long as          such 'brief' and 'pertinent' findings are made and 'the record as          a whole supports the  district court's findings of fact,'  we can          affirm its result."   Id. at 1503 (citations omitted).   Further,                                ___          even where the district court's findings were poorly done because          they consisted  "mainly of mere conclusions  . . . and  [did] not          articulate   specific  factual   bases  for  the   trial  court's          boilerplate  decision," there  was no  Rule 52(a)  defect because          "despite  the factual  shortcomings,  the basis  for the  court's          decision  is  clear  [and   the]  record  gives  substantial  and          unequivocal  support  for  the  ultimate  conclusion."    Unt  v.                                                                    ___          Aerospace  Corp., 765 F.2d 1440, 1444 (9th Cir. 1985), cited with          ________________                                       __________          approval in Applewood  Landscaping, 884  F.2d at 1504.   We  have          ___________ ______________________                                         -42-          also  noted that  anemic factual  findings are  not fatal  to the          decision so long as a complete understanding of the issues may be          had from the record  on appeal.  Applewood Landscaping,  884 F.2d                                           _____________________          at 1504 (citations omitted).                    After reviewing  both the  record and the  opinion with          these principles in mind,  we conclude that the district  court's          findings of fact are adequate.  The Monitor's position throughout                                          ___________          the trial, put forth  by its expert witnesses and  its editor-in-          chief,  was  that the  technological  advances  in the  field  of          journalism  had rendered the Secretary's interpretations obsolete          and that most,  if not  all, employees  in the  field today  were          exempt professionals.  The Monitor tried to highlight the changes                                 ___________          in the newspaper business  brought about in the last  forty years          and  explain how these  changes had undermined  the pertinence of          the Secretary's  interpretations.   The district  court's opinion          makes  it clear  that  it  simply  did  not  find  this  evidence          sufficient   to   render   the    interpretations   inapplicable.          Newspapers of New England, Inc., 834 F. Supp. at 535-36.          _______________________________                    Once   the  district  court  accepted  the  Secretary's          interpretations as persuasive authority, the rest of its decision          was  all  but determined.   The  Monitor  presented little  or no                                      ____________          evidence suggesting that  the employees at  issue fell into  that          minority  of reporters  whose  work was  dependent on  invention,          imagination, or  talent.  The Monitor made no significant attempt                                    ___________          to differentiate  the work  of its reporters,  photographers, and          editors  from the  work done  at  every newspaper  throughout the                                         -43-          country.   Given this framework, the  district court's admittedly          meager findings of  fact provide an adequate  basis for appellate          review.  Between the opinion  and the record, we have garnered  a          thorough understanding of  the proceedings below, and that is all          that Rule 52(a) requires.                    II.  The Willfulness of the FLSA Violations                    II.  The Willfulness of the FLSA Violations                    The  FLSA  imposes  a two-year  statute  of limitations          unless the  violations are shown to  be willful, in which  case a          three-year period  applies.  29 U.S.C.    255(a).  In the present          case,  the district court found  that the FLSA  violations at The                                                                        ___          Monitor were not willful and thus awarded back wages for only the          _______          two-year  period before the suit was filed rather than the three-          year period claimed by the Secretary.  The Secretary asserts that          The  Monitor's FLSA violations  were indeed willful  and that the          ____________          district court's determination to the contrary was in error.                    FLSA violations are willful where the employer "knew or          showed reckless disregard  for the matter of whether  its conduct          was prohibited by the statute."  McLaughlin v. Richland Shoe Co.,                                           __________    _________________          486 U.S. 128,  133 (1988).  Whether an FLSA  violation is willful          is a mixed question of  law and fact and is therefore  subject to          the clearly erroneous standard of Federal Rule of Civil Procedure          52(a).   See McLaughlin v. Hogar San  Jos , Inc., 865 F.2d 12, 14                   ___ __________    _____________________          (1st Cir.  1989)  (holding that  whether  an FLSA  violation  was          committed in good  faith is a mixed question of  law and fact and          is  therefore  reviewed  only  for  clear error).    Appealing  a          district court's finding on a mixed question "is an uphill battle                                         -44-          as  Congress has  in unambiguous  language expressly  granted the          primary decisional power  in this respect to  the district court,          not  to  the  Secretary  or  the  courts  of appeal."    See  id.                                                                   ___  ___          (citations omitted).    The clearly  erroneous standard  "plainly          does not entitle a reviewing court  to reverse the finding of the          trier  of fact simply because it  is convinced that it would have          decided  the  case differently."   Anderson  v. City  of Bessemer                                             ________     _________________          City, North Carolina,  470 U.S.  564, 573 (1985).   Rather,  "[a]          ____________________          finding is 'clearly erroneous' when although there is evidence to          support  it, the reviewing court  on the entire  evidence is left          with the definite  and firm  conviction that a  mistake has  been          committed."   United States v. United States Gypsum Co., 333 U.S.                        _____________    ________________________          364,  395 (1948).    Where the  evidence  is susceptible  of  two          plausible  interpretations, the  trier of  fact's  choice between          them cannot be clearly erroneous.  Anderson v. Bessemer City, 470                                             ________    _____________          U.S. at 574 (citations omitted).                    Based upon our review  of the record, we find  no clear          error  in the district court's  finding that The  Monitor did not                                                       ____________          willfully  violate the  overtime provisions of  the FLSA.18   The                                        ____________________          18  In pertinent part, the district court's opinion states:                      While  it  is  here  arguable   that  the                      defendants were unreasonable in  not more                      strictly  policing  the  accuracy of  the                      time  cards,  the  preponderance  of  the                      evidence  does not support a finding that                      they   acted   recklessly.      This   is                      particularly   true   in  light   of  the                      closeness  of  the findings  in  the more                      recent  cases  concerning exemptions  for                      those who write and edit for the media.                                         -45-          Secretary  did  present plausible  arguments  in  support of  his          position.  The Secretary argued  that the violations were willful          and could not have been the product of  ignorance because the DOL          explained the  overtime and recordkeeping provisions  of the FLSA          during  its 1974 investigation  of the  newspaper.   Further, the          fact  that The  Monitor  paid  its  employees  for  all  reported                     ____________          overtime  demonstrates  that  it was  indeed  aware  of the  FLSA          overtime requirements.  Additionally, several employees testified          that they had been instructed by superiors to report no more than          forty hours  on their  weekly  timecards.   Those employees  also          testified that  they were occasionally reprimanded  when they did          report  overtime and were told to alter their weekly timecards so          that no overtime hours would be included.                    In its defense, The Monitor  argued that its policy  of                                    ___________          discouraging overtime hours while  paying those employees who did          in fact  report them does not  compel the conclusion that  it was          willfully violating the  FLSA.  Rather, they contended  that this          policy "illustrates the efforts  of an employer trying to  do the          right thing in  the face of  hopelessly outdated 40-year-old  DOL          journalism  interpretations which provide  absolutely no guidance          regarding  which journalists in a modern  newsroom are exempt and          which are not."   In  support of this  contention, The  Monitor's                                                             ____________          editor-in-chief testified that he  had never instructed anyone at          The Monitor to alter  a timecard, and that  The Monitor paid  its          ___________                                 ___________          employees  for  all  reported   overtime.    The  reporters  also                                        ____________________          Reich v. Newspapers of New England, Inc., 834 F. Supp. at 538-39.          _____    _______________________________                                         -46-          testified  that  they would  often  work  unreported overtime  to          satisfy  their own  desire to  produce high  quality work  and to          avoid the perception that they were slow writers.                    Our  scrutiny  of the  record  convinces  us that  both          parties   bulwarked  their  respective   positions  with  tenable          arguments.   Consequently,  we cannot  find the  district court's          ruling to be clearly erroneous.19                    III.  Denial of the Injunction                    III.  Denial of the Injunction                    The Secretary also appeals the district court's refusal          to prospectively  enjoin The Monitor from  committing future FLSA                                   ___________          violations.   The FLSA authorizes  the district courts  to enjoin          violations of  the overtime  and recordkeeping provisions  of the          Act.  29 U.S.C.   217.  The issue of whether  an injunction is an          appropriate remedial measure rests in the sound discretion of the          district  court, and  its decision  on this  matter will  only be          disturbed  on  appeal  where an  abuse  of  discretion is  shown.          Martin  v. Coventry  Fire Dist.,  981 F.2d  1358, 1362  (1st Cir.          ______     ____________________          1992)  (citation omitted).    In exercising  its discretion,  the          district  court  should  weigh   the  finding  of  the  violation          established  at  trial  against  the factors  that  indicate  the          violations  are not likely to  recur, "such as  intent to comply,          extraordinary   efforts   to  prevent   recurrence,   absence  of          repetitive violations, and absence of bad faith."  Id.                                                             ___                                        ____________________          19  Again,  we find support from the Third  Circuit's decision in          Reich v. Gateway Press, Inc., 13 F.3d at 702-03.  Confronted with          _____    ___________________          essentially the same facts as we now face, it refused to overrule          the district court's conclusion that the FLSA violations were not          willful.  See id.                    ___ ___                                         -47-                    Reviewing the  record with these factors  in mind leads          us  to the inescapable conclusion that the district court did not          abuse  its discretion in denying the  injunction.  The violations          at The Monitor were not the product of  bad faith.  Nor were they             ___________          committed willfully.    Rather, the  violations  can in  part  be          traced  to the indeterminate status of the FLSA exemptions in the          field   of   journalism.20     Further,   although   The  Monitor                                                               ____________          steadfastly  insisted throughout  the trial  and appeal  that the          majority  of  its  journalists   were  exempt  professionals,  it          represented  to  the district  court  that it  fully  intended to          comply with requirements of the FLSA as clarified by the ultimate          judicial resolution  of this case.   In these  circumstances, the          denial of the injunction was not an abuse of discretion.                                        ____________________          20   The violations at  issue were committed  in the late 1970's,          long before the current case law began to clarify the issue.                                         -48-                    IV.  Denial of Post-investigation Damages                    IV.  Denial of Post-investigation Damages                    As discussed  above, the Secretary sought  to introduce          evidence  and  win  back  wages  for  FLSA  violations  that  had          allegedly occurred  after the DOL concluded  its investigation at          The Monitor.  The  district court allowed the evidence  pending a          ___________          final ruling  on admissibility.   Ultimately, the  court excluded          the  evidence  and  refused  to  award monetary  relief  for  any          violations  alleged  to have  occurred  after  January 25,  1980,          approximately  the  last day  of the  period  covered by  the DOL          investigation.   With  regard  to this  determination, the  court          stated:                      The reason  for this . .  . limitation is                      that,    although     plaintiff    claims                      "continuing" violations of FLSA, the case                      was largely prepared by the defendants on                      the  ground that violations,  if any, did                      not  continue  beyond  January 25,  1980.                      The court, having  taken the matter under                      advisement, Tr. 1-43, 44, finds and rules                      that it would  be unjust and  inequitable                      to  allow damages  to be recovered  for a                      period beyond January 25, 1980.          Newspapers  of New  England, Inc.,  834 F.  Supp. at  539 (citing          _________________________________          Donovan v. Burger King Corp., 672 F.2d 221, 229 (1st Cir. 1982)).          _______    _________________                    The Secretary  argues that  The Monitor was  well aware                                                ___________          that  the complaint  sought  back  wages  for  post-investigation          violations  and that The Monitor  had ample time  before trial to                               ___________          conduct  discovery  pertinent  to  this issue.    Therefore,  the          Secretary contends, the  district court's  limitation of  damages          was  an abuse of  discretion.  We disagree.   The record contains          ample  support for  the district  court's determination  that The                                                                        ___                                         -49-          Monitor  was unfairly  surprised  by the  Secretary's attempt  to          _______          prove post-investigation violations at trial.  Exhibit A attached          to the  Secretary's complaint  accurately detailed the  amount of          back  wages sought for each employee.  Exhibit A did not indicate          that the claimed wages would be revised at trial to reflect post-          investigation violations.21   The  Pre-trial  Order's summary  of          the Secretary's  claims also  did not reflect  post-investigation          damages.   Rather, the Pre-trial Order stated that damages sought          by  the  Secretary  were  only  those  contained  in  Exhibit  A.          Furthermore,  the DOL  compliance officer in  charge of  the case          stated  at his deposition that Exhibit A contained all the claims          being brought by the  Secretary.  Counsel  for the DOL failed  to          object  to either  the Pre-trial  Order or  the testimony  of its          compliance  officer.   The district  court apparently  found that          this  confluence  of  events  led  The  Monitor  to  conduct  its                                             ____________          discovery on the  reasonable belief  that the  Secretary did  not          intend    to   pursue    back   wages    for   post-investigation          violations.22    We  do  not   find  this  to  be  an   abuse  of                                        ____________________          21  The  fact that Exhibit A did not  indicate that the Secretary          would seek  damages  for  post-investigation  violations  is  not          dispositive because  the Secretary's complaint did  aver that the          violations were ongoing.          22   After  discovery  closed, the  Secretary  sought  to  reopen          discovery to update its back wage computations so that they would          reflect post-investigation  violations.   Though  the  magistrate          judge hearing  the motion  ultimately denied it,  the Secretary's          supporting arguments are enlightening:                      The sole choice, therefore, for . . . the                      Court  is whether  the  pay practices  at                      issue are to be dealt with in one lawsuit                      or  in  a  series  of lawsuits.    It  is                                         -50-          discretion.                    Affirmed.                    ________                                        ____________________                      Plaintiff's  position that  resolution of                      all   back  wage   claims  in   a  single                      litigation would involve less expenditure                      of  time and money . . . .  Plaintiff is,                      however, fully prepared  to file a second                      lawsuit  to protect  its right  to assert                      its claims  as to unpaid  back wages  for                      the  period  January   26,  1980  to  the                      present.          Obviously, this  motion notified  The Monitor that  the Secretary                                            ___________          sought post-investigation damages.  It is equally clear, however,          that the Secretary believed  at the time that it would  be forced          to file a second lawsuit  to secure post-investigation damages if          the  motion to reopen discovery was denied.  The Secretary cannot          now  prevail  in  arguing  that  the  district  court  abused its          discretion  by  finding  that  The   Monitor  was  understandably                                         _____________          unprepared at trial to  defend allegations of  post-investigation          violations.    The Secretary  should have  either filed  a second          lawsuit  or objected  to  the magistrate  judge's  denial of  the          motion pursuant to Fed.  R. Civ. P. 72(a).  The  fact that it did          neither may not be rectified on appeal.                                         -51-
