Contract Lawyer May Be Entitled to Overtime

By Whitney R. Brown Nov 1, 2015


HR Magazine November 2015A contract attorney who performed document review for a law firm can pursue a Fair Labor Standards Act (FLSA) action for overtime pay because he plausibly alleged that his tightly prescribed work was not tantamount to the practice of law, the 2nd U.S. Circuit Court of Appeals ruled.

The FLSA requires employees to be paid time-and-a-half for time worked in excess of 40 hours a week. But there are several exemptions, including one for licensed attorneys and doctors who are “actually engaged in the practice” of law or medicine.

David Lola was hired by Skadden, Arps, Slate, Meagher & Flom to review documents for a complex lawsuit to check whether predetermined search terms were present. He then had to categorize the documents based on those terms and draw black boxes around certain portions of text based on predetermined criteria.

Professional Pointer

Don’t assume that an employee with an advanced degree or credential will automatically qualify for one of the FLSA exemptions.

He argued that he was not exempt from the overtime pay requirements because this work did not amount to the practice of law. The law firm argued that Lola was in fact exempt because it had hired him as a licensed attorney.

The trial court in New York agreed with the firm, but the 2nd Circuit did not, concluding that, if Lola’s work was as controlled as he described, he did not qualify for the FLSA’s lawyer exemption and thus would be entitled to overtime.

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Paid Suspension Not Adverse Employment Action

A paid suspension was not an adverse employment action under the nondiscrimination provision of Title VII of the Civil Rights Act of 1964, the 3rd U.S. Circuit Court of Appeals held. The employee was suspended, with pay, while her employer investigated allegations that she had submitted fraudulent timesheets. The trial court concluded, and the appellate court agreed, that placing an employee on paid administrative leave is not an adverse action because it does not change compensation or alter the terms, conditions or privileges of employment.

Whitney R. Brown is an attorney with Lehr Middlebrooks Vreeland & Thompson, the Worklaw® Network member firm in Birmingham, Ala.


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