Manhattan Federal Court Finds Contract Attorney “Practiced Law,” Exempt From Overtime
An attorney and his lawyer made headlines recently when he asserted an FLSA claim against prominent Manhattan law firm Skadden Arps claiming the firm owed him overtime pay for his work as a contract attorney on large scale litigation handled by Skadden. On Wednesday, Judge Richard J. Sullivan granted Skadden’s motion to dismiss the claim. Lola, et al. v. Skadden, Arps, et ano., No. 13-CV-5008, DKT 35 (S.D.N.Y., Sept. 16, 2014).
While Skadden argued that the agency through which Plaintiff Lola worked was his employer, and that Plaintiff failed to plead that Skadden was his “joint employer” under the FLSA, Judge Sullivan declined to reach that argument because he answered the dispositive question of whether Lola was “exempt from the overtime requirement by virtue of being ’the holder of a valid license…permitting the practice of law…[who] is actually engaged in the practice thereof’” in favor of the defendants. After a lengthy analysis in which the court determined that the operative inquiry under the applicable FLSA regulation (29 C.F.R. § 541.304) was whether Plaintiff Lola was practicing law as defined under North Carolina state law, Judge Sullivan determined that Lola’s document review for Skadden constituted practicing law within the meaning of a North Carolina State Bar ethics opinion amplifying the term “legal services.” The Judge declined Plaintiff Lola’s invitation to utilize an analysis similar to that utilized for the other “white collar” exemptions, i.e., to “scrutinize his precise job responsibilities to determine whether they required legal judgment and discretion.” finding that approach “at odds with [the] regulatory framework…[placing] licensed attorneys and doctors…in a special class of workers that may be deemed to be professionals even without a fact intensive inquiry into the nature of their job duties.”
Judge Sullivan’s thoughtful and technical analysis confirms what may seem obvious to lay people and many practitioners: lawyers practicing law are not overtime-eligible under the FLSA. However employers must analysis their compensation obligations to all professional employees under the FLSA and state law. Of course, Plaintiff Lola’s counsel has indicated he will appeal this matter to the Second Circuit, and counsel represents at least one other attorney in a similar pending claim. Henig v. Quinn Emanuel Urquhart & Sullivan, LLP, No. 13-cv-1432 (S.D.N.Y. Dec. 11, 2013).