As attorneys, we like to think that we are performing work that requires thought, insight, and independent legal judgment. We bristle at the idea that what we do can be performed by machines or that we can be replaced with a computer program, no matter how complex. We’re not robots after all! However, if we want to be paid overtime under the FLSA, perhaps we need to change our tune.
The plaintiff in Lola v. Skadden, Arps, Slate, Meagher & Flom, LLP, No. 14-3845 (2d Cir. July 23, 2015) was engaged to work on a document review project for Skadden through a legal staffing agency for a period of 15 months. He typically worked 45 to 50 hours a week and was paid $25 per hour, regardless of whether he worked over 40 hours in the week. Lola sued Skadden and the legal staffing agency, arguing that they had violated the FLSA by failing to pay him overtime.
The FLSA’s overtime provisions do not apply to attorneys “engaged in the practice of law.” Thus, in order to Lola to be entitled to overtime, the document review that he performed could not be considered engaging in the practice of law. But what does it mean to “practice law?” The Second Circuit held that the practice of law is defined by state law because, much to the chagrin of most attorneys who would like to practice law in more than one state, there is no federal law governing lawyers. Instead, individual states regulate the practice of law by setting rules for who may practice in the state, promulgating rules of professional ethics, and disciplining lawyers who fail to follow the rules.
Concluding that North Carolina law applied to the parties’ dispute, the Second Circuit examined the law of North Carolina to determine whether the state would consider document review to constitute the practice of law. While North Carolina did not directly address whether document review constitutes practicing law, the Second Circuit recognized that inherent in the definition of “practice of law” is the exercise of at least a modicum of independent legal judgment.
Lola argued that he was not engaged in the practice of law when he was performing the document review because he performed the review under such tight constraints that he exercised no legal judgment whatsoever. Lola stated that he simply used criteria developed by others to simply sort documents into different categories. The Second Circuit concluded that whether the services performed by Lola involved independent legal judgment was a question of fact, and it remanded the case to the district court for further proceedings. In doing so, it observed that “[a]n individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.”
Properly classifying a worker as an independent contractor or an employee, or as exempt or non-exempt, continues to be difficult task for employers.