I have blogged before about law firms being sued in FLSA class actions by lawyers who claim they were not performing “legal work” and thus are non-exempt, i.e. overtime eligible. Now, the law firm of Quinn Emanuel Urquhart & Sullivan, LLP is asking the Second Circuit to provide guidance on this momentous issue, which can and will have major ramifications for law firms throughout the country. The law firm has filed a motion to certify a December 11 order which denied the firm’s motion to dismiss the class action. The case is entitled Henig v. Quinn Emanuel Urquhart & Sullivan, LLP.

At issue is the definition of what constitutes a professional employee. In its papers, the law firm urged that the case has far wider ranging impact than just the particular employees involved. “Beyond the parties to this case, the legal industry desperately needs the circuit’s guidance on how to compensate contract attorneys hired to perform document review. Although this court has announced one test, another district court recently adopted a test akin to defendants.”

The plaintiff lawyer alleges that he was only reviewing documents and that his work was “extremely routine.” Therefore, he claims that he was not performing exempt work of an attorney and thus he was non-exempt. The law firm urged that practicing lawyers are always considered professionals and exempt. The District Court, however, concluded that it was not clear at this early stage of the case that the exemption was solidly established. The court below stated that the issue would be resolved by deciding whether Mr. Henig (and those similarly situated) were practicing attorneys. Other courts have considered cases in which non-lawyers were acting or functioning as lawyers but this matter is completely different from those cases.

I believe that these individuals are indeed acting and functioning as lawyers. Even though they are ”only” reviewing documents, they are utilizing their years of education and legal training to analyze the documents and determine their importance to the litigation, as well as whether some of the documents should be claimed as privileged.

I think the Second Circuit should take this appeal and decide the matter. Such a decision will provide nationwide guidance. Such guidance is desperately needed as a rash of these litigations is now working their way through various courts in the country.