Should Lawyers Who Do Document Review Get Overtime? Attorney Kirschenbaum Argues the Fair Labor Standards Act Says “Yes!”

Attorney D. Maimon Kirschenbaum is no stranger to the nuances of the Fair Labor Standards Act (FLSA). He earned his bona fides, in part, by advocating for the FLSA rights of restaurant labors, such as dishwashers and wait staff.

But his clients in one of his latest cases may surprise observers. He is representing lawyers.

Kirschenbaum filed a class action recently in New York Federal Court against a large legal firm (Skadden, Arps, Slate, Meagher & Flom) and a staffing company, Tower Legal Staffing. The plaintiffs argue that Skadden took advantage of out-of-work law school grads. They allege they were hired to do simple document review with no room for judgment…without being paid fair overtime, per the FLSA.

Kirschenbaum has already filed similar lawsuits. This latest one concerns a University of San Diego, School of Law graduate named David Lola, who became a lawyer back in 2004.

Mr. Lola moved to North Carolina and started doing work for Skadden last April. In his role, he often worked up to 55 hours a week. For his labors, he received just $25 an hour – he was not paid time-and-a-half for hours worked over 40 hours a week. Kirschenbaum argues that this payment scheme violates the FLSA. He spoke in blunt terms: “[Skadden is] exploiting the prestige of the profession to screw a lawyer out of his rightful wages.”

In the complaint, which was filed on behalf of Mr. Lola and others who’ve experienced similar treatment, Kirschenbaum details the laborious, push-button nature of the document review work that left attorneys little room to exercise judgment.

One of the main counterarguments put forward is, effectively: well, that’s the way document reviewers have always been paid in the industry. Skeptics say Kirschenbaum’s argument “calls into question the work of full time first and second year associates in large law firms, some of whom spend large portions of time conducting document review.”

The commonsense rebuttal to this counterargument is: just because something is ‘typical industry practice’ doesn’t make it ethical or legal.

Consider for yourself, based on the following work description:

“Plaintiff’s entire responsibility while working for Defendants was (a) looking at documents to see what search terms, if any, appear in the documents (b) marking those documents into categories predetermined by Defendants and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols the Defendants provided.”

It doesn’t sound like the practice of law – like something you’d need an advanced, very costly law degree to do.

If you or somebody you love has been struggling with a work and hour case or a potential FLSA case, please get in touch with Joseph & Kirschenbaum now by calling us at (212) 688-5640 or writing info@jhllp.com.