What Does It Mean to “Practice Law”? Major FLSA Case Takes on This Question

In December, a New York federal judge heard arguments in a wage and hour case brought by Joseph & Kirschenbaum on behalf of contract attorney, David Lola. The case could have profound ramifications for law firms across the city and beyond.

Our own attorney, Maimon Kirschenbaum, argued that Lola should have been entitled to overtime pay, per the Fair Labor Standards Act (FLSA), since Lola needed to adhere to “extremely detailed protocols” when he did document review work, and that he had no ability to “exercise any judgment” that an attorney typically might render.

Unsurprisingly, representatives for Skadden, Arps, Slate, Meagher & Flom and Tower Legal Staffing — the defendants in this case — have taken a different view of document review. In a brief that they submitted to the court, Skadden made a passionate argument that “the federal overtime laws were not designed for advanced-degree professionals to accept premium wages and then make ‘gotcha’ arguments that they were misclassified for every period they performed a task a nonprofessional could allegedly also complete.”

So questions remains: does the kind of contract law work that Lola did count, per the FLSA, as ‘lawyer work’ or not? Should a document reviewer be entitled to overtime, per the FLSA?

It is interesting to consider the language that Skadden used in the brief. In describing Mr. Lola as an “advanced-degree professional” who was receiving “premium wages,” the brief almost made it sound like the plaintiff only got two Lamborghinis, when he wanted three Lamborghinis.

The reality is that contract work is many ways tantamount to data entry. It’s not like a robot could do it. But it’s certainly not work that you need to spend hundreds of thousands of dollars on a law school education to know how to do.

One of the interesting points made by Judge Richard Sullivan was that many first and second year associates also engage in mundane, clerical tasks during work. Judge Sullivan worried about a scenario in which the court would find itself tasked with calculating the percentage of an attorney’s work that truly constituted the practice of law. He worried: “there might be full-fledged associates with Skadden who do 90 percent document review and who want overtime on their $160,000 a year salary.” Attorney Kirschenbaum appreciated the nuance of this argument but noted that: “a first year could make photocopies, but that doesn’t change that he was hired as a lawyer.”

It’s also important to consider this issue in a global context. There are reasons why the FLSA overtime rules (and exemptions) exist. Lawmakers wanted to compensate difficult service work appropriately and protect employees from being exploited. At the end of the day, this case is about ensuring that big businesses (including big law firms) pay their employees appropriately for the work they do and for the hours they work.

For help with your New York wage and hour case, turn to the team here at Joseph & Kirschenbaum for a free, confidential consultation at (212) 688-5640, or email us immediately at info@jhllp.com.