FLSA overtime pay (Fair Labor Standards Act) claims are on the rise as employees take a stand against their employers’ efforts to deprive them of overtime pay for work performed. FLSA and the Texas Payday Law require employers to pay overtime pay at one and a half times the regular rate of pay hours worked over forty. Not all employees receive overtime pay. The FLSA and Texas Payday Law exclude many groups of employees. The most common exemption from overtime pay is salaried and exempt employees who meet one or more of the overtime exemptions in the FLSA. Lawyers meet one of the salaried exemptions for overtime pay but FLSA specifically exempts lawyers and doctors from overtime pay under the FLSA. However, some lawyers are challenging whether they are “lawyers” subject to our special exemption from overtime.
Employment lawyers for overtime pay
A New York employment lawyer filed several suits in 2010 against some of the largest law firms in the country and some of the largest legal staffing firms over the work performed by document review attorneys. Large law firms contract out a substantial amount of the work reviewing legal documents in lawsuits to contract attorneys.
While the attorneys at BigLaw firms may make $160,000 or more as a starting salary, the document review attorneys usually make $15-50 per hour. The work is grueling and the hours are long; but it beats unemployment with six figures of student loan debt to pay.
The employment lawyer who filed suit for these lawyers asserts that the work does not require legal analysis; so the document reviewers are not working as lawyers. If they are not working as lawyers but paid hourly then they are nonexempt employees and should receive overtime pay.
Labor attorneys for overtime pay
The law firms assert the work is legal work because document review requires assessing the documents for their legal value. That is “lawyer work”. They have a point. Document review is an important part of the litigation process. It is performed by many attorneys at some point in their career. There is a difference between lawyers who document review as part of their job and lawyers who only document review.
The argument the law firms advance is legal work is a tenuous position; especially when one considers how much paralegals perform the same functions as lawyers. Ultimately, I believe the courts will decide document reviewers are performing legal work and will not receive overtime pay. BigLaw firms are too closely associated with the judiciary to have their fundamental organization broken down under the FLSA.