United States: It Might Be Mechanical, But It’s Exempt: Court Dismisses Temp Document Reviewing Attorneys’ Overtime Collective Action

A district court in New York dismissed the putative collective action filed by a contract attorney who performed document review for Skadden, Arps, Slate, Meagher and Flom LLP ("Skadden") for fifteen months. See Lola v.Skadden, Arps, Slate, Meagher & Flom LLP.  Under the Fair Labor Standards Act ("FLSA"), an employee is exempt from overtime as a professional employee if he or she is "the holder of a valid license . . . permitting the practice of law" and "who is actually engaged in the practice thereof." 29 C.F.R. § 541.3.  The named plaintiff and proposed class representative, David Lola, was a licensed attorney, and, therefore, the dispositive question was whether he was practicing law such that he qualified for the exemption.

The court first determined that in considering what it means to practice law, it must look to the law of the state in which the individual was working.  Therefore, while Lola was admitted to the California bar and performed services for the NY-based Skadden in support of a multi-district litigation pending in Ohio, it was the definition of the practice of law of the state of North Carolina, where Lola worked, that controlled the inquiry.  Looking to North Carolina law and the ethics opinions of its State Bar, the court determined that document review services constitute "legal work" that can only be performed by an attorney or non-lawyer that is supervised by a licensed attorney.

The court rejected Lola's argument that the practice of law includes only those tasks that require the exercise of legal judgment and discretion.  Relying upon the text of the FLSA Regulation and the North Carolina statutory definition of the practice of law, the court reasoned that there is nothing to suggest that the exercise of legal judgment is necessary to be considered the practice of law.

Although Lola has indicated that he will appeal the decision, for now, in the eyes of at least one court, even the performance of legal tasks by licensed attorneys that are allegedly "mechanical" and "require little or no legal judgment" support exemption from the overtime requirements of the FLSA.

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