Our recent post about contract attorney work, part of Non-Top-Tier Law School Week here at ATL, generated almost 200 comments. We’re happy to report that we have more for you on that front.
Here’s a question from a contract attorney reader:
I’ve done some contract attorney work (doc review, ick) in the past and have been offered jobs that pay a flat fee of $35-$45 an hour, but want 60 to 80 hours a week.
The Fair Labor Standards Act seems to say that professionals (attorneys) are only exempt from OT pay when they’re salaried. We contract attorneys, obviously, don’t fall within that category. It also seems to say that it’s illegal for an employer to make an employee waive that right to overtime pay.
Any idea why it is that so many major law firms can hire contract staff for flat rates and make them work overtime without OT pay?
More after the jump.
Our tipster continues:
FLSA basically says that everyone gets overtime except those who fall under an exemption, one of which is for professional employees, which explicitly includes “Any employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof” (29 CFR 541.304). In addition to being a professional, there are other requirements to meet the exemption (including being paid on a salary basis, which we aren’t, but that requirement is waived for lawyers).
The only wiggle room I see there is whether we are “actually engaged in practice” of law. That’s the thorny part. I did talk to a woman at a large New York temp agency who said that ALL paralegals must receive OT pay for overtime work. There is a clear distinction between paras and licensed attorneys. I’m not sure what the rule is for JDs…
I’m admitted and not making OT. i think there’s a decently strong argument that doc review isn’t “practicing” by any measure.
Well, that’s debatable. Are all those hapless junior associates in Biglaw, earning their $160K while spending months on end doing doc review, not “practicing”? If the FLSA definition of the practice of law is the same as it is for professional responsibility purposes (and we don’t know whether it is or not), then the “practice” of law is defined very broadly. If document review calls upon you to exercise some legal judgment or apply legal knowledge — e.g., is this document responsive, based on the facts and legal theories in the case; is this document subject to attorney-client privilege — then it might constitute the practice of law.
But does any of this matter? Our tipster goes on to note:
Good luck finding the firm to sue 1/3rd of the firms in the city. Also good luck finding plaintiffs (who would have to be ready to be blacklisted from any firm that was brought into the suit).
As the WSJ piece nicely reminds us all, it’s hard enough to find work as it is…
Any thoughts on the subject of contract attorney work and overtime pay? Please share them, in the comments. Thanks.
Earlier: Contract Attorney Work and Overtime: What’s the Deal With That?