Is Harper’s $40,000 Assistant Editor Salary Against the Law?

New York State minimum wage laws require salaried employees to be paid at least $58,500 to be exempt from overtime pay

A couple of weeks ago, the salary in a Harper’s job listing for an assistant editor position sparked the ire of underpaid media workers. “Responsibilities will include fact-checking, copyediting, proofreading, and working with the managing editor and art staff to run the production process using InDesign,” reads the posting. “The ideal candidate will be a meticulous editor with a keen ear for language who is familiar with the magazine’s history and style.” As for compensation, “The salary is $40,000 a year, and the benefits package includes a generous health-insurance plan.” For some, that number was hopelessly meager for a New York City resident. As Frederick Melo, a reporter at the St. Paul Pioneer Press in Minnesota, tweeted, “in NYC means you’d have to eat cold mac and cheese someone threw out their Uber window leaving the bar,” and added, “Biggest barrier breaking into this journalism is you basically need generational wealth.” But others, such as Morning Brew executive editor Josh Sternberg, wondered, “Is this $40k salary against the law?”

Minimum wage rules in New York have changed quite a bit in recent years. A new law went into effect in 2016, which has boosted the minimum wage in New York City to $15 per hour after several years of increases. Working 40 hours per week at $15 per hour for 52 weeks would earn $31,200, well below $40,000. Where Harper’s salary might run afoul of the labor law is its requirement of time-and-a-half overtime pay for anyone who works more than 40 hours per week. To be exempt from overtime pay under the current minimum wage rules, New York City employees must make an annual salary of at least $58,500, almost 50 percent more than the salary Harper’s is offering for its assistant editor job listing.

In a statement to The Fine Print, a spokesperson for Harper’s said the job “does not violate minimum wage requirements. The job comes with free health insurance, three weeks paid vacation, three paid personal days, and 10 paid sick days and 14 paid holidays annually. It is a salaried position, there is no overtime. Harper’s Magazine is a nonprofit.”

However, labor law experts said that unless Harper’s pays for overtime, it is not complying with the wage rules. “The Harper’s assistant editor position doesn’t appear to qualify for any of the exemptions under the federal and state overtime pay laws,” said Paul Sonn, State Policy Program Director at the National Employment Law Project. He added, “that means that employees in such positions must be paid time-and-a-half overtime when they work more than forty hours in a week — and that the employer would be breaking the law if it does not pay such workers accordingly.” He explained that these rules apply to nonprofits as well. “Neither federal nor New York law contains an exemption from overtime pay requirements for nonprofits,” Sonn said.

Samuel Estreicher, a professor of labor and employment law at New York University, stated in the case of Harper’s, “the question is not whether the duties test of federal law is satisfied (and I think it may be), the question is one of NYC law which has raised the salary threshold for overtime exemption.”

Sonn noted that there are several other overtime exemptions in federal and state laws for certain employees, such as executives, administrators, and professionals, but is doubtful that this would apply to a Harper’sassistant editor. “The U.S. Department of Labor advises that journalism jobs involving routine tasks are generally not exempt,” Sonn said, “and has in the past advised that copy editing positions – one of the chief responsibilities listed for the Harper’s job — are not exempt.” He pointed to a 2006 decision by the Labor Department which ruled that the copy editors at a book publisher were not exempt from minimum wage and overtime rules. “We do not believe the primary duty of the copy editors and senior copy editors is directly related to the management or general business operations of the employer or the employer’s customers or includes the exercise of discretion and independent judgment with respect to matters of significance,” the department found. “It is our opinion that these employees do not qualify for the administrative exemption and must, therefore, be paid in accordance with the minimum wage and overtime pay provisions.”

More recently, in 2019, the Labor Department published a fact sheet on whether journalists fell under the “creative professional exemption,” and advised, “There is no ‘across the board’ exemption for journalists; nor has there ever been.” Instead, the agency said, “journalists’ duties vary along a spectrum from the nonexempt to the exempt,” and must be determined on a case-by-case basis. Mostly, this hinges on how much autonomy and creative control a journalist has in their job: news readers, narrators, and opinion columnists are more likely to be exempt, while “employees of newspapers, magazines, television, and other media are not exempt creative professionals if they only collect, organize, and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product.”

The Harper’s job seems to fall more in the latter category. A former assistant editor at Harper’s, who requested to remain anonymous, told The Fine Print she was treated “a little bit like a functionary.” One of the things she’d most looked forward to upon her hiring was pitching stories, but early on in her time at Harper’s, she said she was told that though junior editors were allowed to pitch stories, they were advised not to. “I was kind of told, like, oh, well, you’re going to go to the editorial meeting, but you’re not supposed to say anything,” she said. “All of Harper’s was governed by these kinds of whispered rules.” She added that inadequate salary was a “longtime issue” at the publication that not only affected her but “had a huge cascade effect on who gets to work at Harper’s.” She was paid $36,000 and said that she lived in the spare room of a six-person household, where she didn’t have access to the kitchen. “I always got the strong impression at Harper’s [that] it was futile to try to ask for more than we were getting because we were kind of expected to be grateful for the scraps we got.” This former assistant editor told The Fine Print that she was not pushed to work overtime and was firm about not going beyond her working hours in part because the pay was so low. 

In 2010, the editorial staff at Harper’s unionized as a United Auto Workers local over the objections of publisher John “Rick” MacArthur. In 2015, shortly after Gawker Media became the first New York media company to organize under the Writers Guild of America East, the Harper’s staff voted to decertify its union with an eye toward reorganizing later, but the staff remains without a union.

Salary floors have been a common topic in recent bargaining agreements at media outlets. And it seems that the $58,500 threshold for overtime exemption has been playing a role in determining minimum salaries. The New Yorker’s union ratified a contract last June which introduced a minimum salary of $55,000 and increases to $60,000 by the end of the agreement in 2023. Last December, the contract the Wirecutter Union ratified established a salary floor of $60,000. While at BuzzFeed, where the union has been bargaining with management for more than two years, overtime and minimum salaries have been a sticking point. An update from the union last month on the state of talks said, “Management introduced an infuriating new concept in their latest counter on pay, splitting the salary minima between overtime-eligible employees and exempt employees. This only reinforces the hierarchical system we set out to dismantle in this contract! They’ve proposed a minimum salary of $50,000 for OT-eligible employees and $53,000 for exempt employees. (Notably, OT is not guaranteed and has to be approved by management!)”

At Harper’s, the former assistant editor said, there’s long been a tension between the pride its editorial employees take in the magazine and profound dissatisfaction in their working conditions. “There was a certain love there, there was definitely a level of emotional attachment.” And she’s not optimistic that compensation will improve. “When I left Harper’s, I felt like I was leaving a sinking ship,” she said. “It’s quite possible that other magazines can be guilted into paying their editors more, but I am not optimistic that the same thing can happen at Harper’s.”