By: James B. Sherman, Esq.
Answer: When the lawyer does not do enough "lawyerly" things to qualify for the professional exemption from overtime requirements under the Fair Labor Standards Act (FLSA).
The U.S. Department of Labor has long said that the determination of whether an employee is exempt or non-exempt from the FLSA's overtime requirements, is not governed by job titles but by job duties. A recent decision by the U.S. Court of Appeals for the Second Circuit, out of New York, is a somewhat surprising example of this rule in application to the legal field. The case involved a class of so-called "contract lawyers" who sued for overtime pay for "document review" work they performed through a temp agency for mega law firm Skadden Arps. The plaintiffs claimed their duties in reviewing documents were so mundane that "a machine could do them." Accordingly, although the plaintiffs were licensed professional attorneys they claimed that their duties did not meet the professional white-collar exemption and they were entitled to overtime pay under the FLSA.
The appellate court refused to dismiss the case, noting that if the attorneys' duties could be performed by a machine they clearly would not be exempt professional employees. If attorneys can be nonexempt and entitled to overtime pay, the same could apply to accountants, doctors, engineers and other "professionals" if their job duties fail to satisfy the exemption. This same principle applies equally to the executive and administrative exemptions, where the specific duties and not the title of the job determine whether or not it is exempt from overtime requirements. Much litigation - frequently class action litigation - arises out of employers' failure to recognize this principle.
For advice on determining exempt vs. non-exempt status, wage and hour audits, or competent defense against overtime claims, contact any of our Wessels Sherman offices in Minnesota, Wisconsin, Illinois, or Iowa and ask to speak to a shareholder in our wage and hour litigation team.
