I have been following the series of lawsuits filed by attorneys who claim they were not performing “attorney” work and are therefore entitled to overtime in collective and class actions filed under the Fair Labor Standards Act. Now, the major law firm of Skadden Arps, in defending one such suit, has filed a motion to dismiss the suit, strongly contending that a recent decision by a judge who refused to dismiss a similar case disregarded relevant caselaw and promulgated an “unworkable standard.” The case is entitled Lola v. Skadden Arps Meagher Slate & Flom LLP and was filed in federal court in the Southern District of New York.

In a brief submitted to the Court, Skadden urged that the policy undergirding the FLSA never anticipated that individuals like these would be eligible for overtime pay. “The federal overtime laws were not designed for advanced-degree professionals to accept premium wages and then make ‘gotcha’ arguments that they were misclassified for every period they performed a task a nonprofessional could allegedly also complete.”

The law firm contended that the plaintiff’s reliance on U.S. District Judge Ronnie Abrams’ December decision not to dismiss a similar suit was misplaced. The firm, contrary to Judge Abrams, who concluded that what constitutes the practice of law was one of first impression for federal courts, asserted that federal courts have already ruled on this and found that the work at issue was, in fact, exempt.

The law firm also strongly disagreed with Judge Abrams setting forth (or, perhaps, inventing) a three part test to determine if an individual was practicing law. The firm argued this was beyond the FLSA to determine if someone is engaged in the practice of law. The plaintiff in this case has urged that this “test” be adopted. The “test” is whether the worker gives legal advice to particular clients, whether the individual holds himself out as an attorney and whether the person’s duties compel him to rely on his legal knowledge and judgment. The law firm points out, however, that the FLSA professional exemption does not mandate specific inquiry into the discrete tasks performed by the lawyer.

I believe this “test” is indeed an unworkable standard and not what is intended under the FLSA professional regulations related to the practice of law. I believe that these document reviewers are utilizing their legal judgment and analytical ability, even though the work, on the surface, may be tedious and repetitive.

To be continued….