Contract Attorney’s Quest for Overtime Pay Fails

Category: Employment Law

On December 30, 2015, a federal court in New York dismissed Plaintiff William Henig’s claim against the law firm of Quinn Emanuel Urquhart & Sullivan LLP and the legal staffing firm Providus, for overtime wages brought under the Fair Labor Standards Act (FLSA). The court roundly rejected Plaintiff’s claims that he was entitled to overtime wages for the routine review of documents, to determine if the documents fell within a privilege or were relevant, noting that an attorney’s review of documents constitutes the practice of law. The judge was not persuaded by Plaintiff’s argument that the review of documents required no legal analysis. In reaching her decision, Judge Abrams noted that new attorneys often perform repetitive tasks that are “modest in intellectual scope” and “banal.” Nevertheless, the court held this still constitutes the practice of law.

Under the FLSA an employer is not required to pay overtime to attorneys who perform legal work in excess of 40 hours per week. Attorneys performing legal work fall within the learned professional exemption found at Section 13 (a) (1) of the FLSA. In addition, this section of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide administrative, professional, executive and outside sales employees. Section 13(a)(1) and Section 13(a)(17) creates an exemption for certain computer employees. In order for the exemption to apply, employees must satisfy certain tests regarding their job duties and must be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. For more information see the Department of Labor’s Fact Sheet #17D.

In early December 2015, after the 2nd Circuit Court of Appeals held that Plaintiff David Lola’s claim for overtime brought against the law firm of Skadden, Arps, Slate, Meagher & Flom LLP and the staffing agency Tower Legal Solutions should proceed, the parties settled the case. In Lola, the Court of Appeals held that Plaintiff’s suit alleged that the services he provided could have been provided by a “machine” and thus arguably did not constitute the practice of law.

The key analysis is whether the attorney’s work involved the requisite exercise of judgment and discretion which is fundamental to the practice of law. In Henig the court said the work did meet this standard and in Lola the court found the opposite.

Attorneys employed as contract labor for law firms run the risk of losing work opportunities if courts view their labor as falling outside the scope of the practice of law. Law firms utilizing contract attorneys are keenly interested in these cases and their potential liability for overtime pay.

Henig v. Quinn Emanuel Urquhart & Sullivan, LLP et al
New York Southern District Court, Case No. 1:13-cv-01432
District Judge Ronnie Abrams, presiding

Lola v. Skadden, Arps, Slate, Meagher & Flom
United States Second Circuit, 14-3845
Decided: July 23, 2015

Tags: FLSA

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