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Are All Professionals Exempt From Overtime Pay? I Need A Lawyer!

On Behalf of | Sep 17, 2015 | Wage: Overtime |

Best Ohio Overtime Attorney Answer: I know doctors are exempt from the FLSA but if what I do isn’t really the practice of medicine, should I get overtime pay?  Is document review considered the “practice of law,” such that contract attorneys are exempt under the FLSA? What type of lawyer do I need to sue for wage theft?

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As our wage and hour attorneys frequently blog about, the Fair Labor Standards Act (“FLSA“) requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 an hour, plus time and one-half their regularly hourly rates for all hours worked over 40 in a given workweek.

As overtime law lawyers, we frequently encounter employees who have been misclassified by their employer as exempt and, as such, have been denied their rightful overtime pay. The most commonly encountered exemptions in FLSA overtime cases are the Professional, Administrative, and Executive exemptions, each of which requires a minimum wage of at least $455.00 a week ($23,660.00 a year), and a fact intensive inquiry into the actual job duties of the employee. (See What Is The Minimum Salary To Be Exempt From Overtime Pay Requirements? I Need A Lawyer!; Should I Be Paid Overtime Even If I Have The Title Manger? Top Ohio Wage and Hour Lawyer Reply; Am I Entitled To Overtime? I Need A Lawyer!; and Top Wage and Hour Lawyer Reply: As A Salaried Employee, Am I Exempt From Overtime Pay?).

For example, it isn’t enough that an employee be labeled as an executive to be covered by the Executive exemption. Rather, the employee must be primarily engaged in management, either of the business or one of its divisions, must direct the work of two or more employees, and must have the ability to hire or fire employees, or at least must have significant input into hiring and firing. To fall within the Professional exemption, the employee’s work must be primarily intellectual in nature, requiring an advanced knowledge in a field of science or learning, which is typically the result of a long course of study.

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While the three previously mentioned exemptions make up the bulk of disputes in overtime misclassification claims, there are dozens of occupations that are specifically exempt from the FLSA’s overtime provisions. Some of the named exemptions are downright strange and perhaps serve as a reminder that nearly every industry has a lobby. For example, “Homeworkers making wreaths” need not be paid overtime or minimum wage.

In addition to certain wreath makers, doctors and lawyers are generally exempt from the FLSA’s overtime provisions. While most doctors and lawyers would fall within the Professional exemption anyway, the FLSA does not require the normal fact inquiry into their duties. Rather, the FLSA specifically exempts doctors and lawyers from the its overtime provisions, at least so long as the doctor or lawyer is practicing medicine or the law.

When is a lawyer not a lawyer, though? More specifically, are there tasks that, even though performed by a lawyer, should be compensable as overtime? These are the questions that the U.S. Court of Appeals for the Second Circuit recently considered. In Lola v. Skadden, Arps, Slate, Meagher & Floam, the Second Circuit recently held that contract lawyers may be eligible for overtime when their work is so basic that it doesn’t constitute the practice of law.

David Lola is an attorney licensed in California who performed document review in North Carolina, related to a federal lawsuit filed in Ohio, for Skadden Arps, a behemoth law firm headquartered in New York. While this may look like the fact pattern for an MPRE question about the unauthorized practice of law, Lola’s is actually an overtime case.

Large law firms frequently hire contract attorneys on a short-term basis to review the truckloads of documents that can accompany complex litigation. Paying a contract attorney, frequently through a staffing company, $20-$30 an hour to conduct document review is a lot cheaper for the firm and client than having an associate or even staff attorney review the documents.

Lola was paid $25 an hour, for work weeks that ranged from 45-50 hours, and was never paid overtime. Lola said his work involved using predetermined search terms to sort documents into categories with the assistance of a computer program. According to Lola’s wage and hour complaint, “The work consisted mostly of looking at documents that came up on a computer screen as a result of search terms determined by Skadden, and then hitting keys that categorized them as ‘responsive,’ ‘not responsive,’ or ‘privileged.’”
Lola brought the wage theft lawsuit in the U.S. District Court for the Southern District of New York, arguing that the work he was doing was so basic, so devoid of the exercise of any legal judgment, it could not be considered the practice of law.

The Second Circuit agreed with Lola and overruled the District Court, which had concluded that document review constitutes the practice of law. The Second Circuit, taking a clue from a North Carolina Bar ethics opinion, determined that “inherent in the definition of the practice of law in North Carolina is the exercise of at least a modicum of independent legal judgment.” The court specifically held:

The gravamen of Lola’s complaint is that he performed document review under such tight constraints that he exercised no legal judgment whatsoever—he alleges that he used criteria developed by others to simply sort documents into different categories. Accepting those allegations as true, as we must on a motion to dismiss, we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants. A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided. The parties themselves agreed at oral argument that an 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. We therefore vacate the judgment of the district court and remand for further proceedings consistent with this opinion.

The key overtime take away from this case is that it does not matter what your boss says your title is. It does not matter if you are called an executive, professional, or even a lawyer. The courts will look to see what you actually do to determine if you are exempt or non-exempt. Misclassification is always a big problem in overtime cases. It will likely be hard to figure out on your own. Luckily, you don’t have to.

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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