I told you so!
A federal judge dismissed the putative collective action against the huge law firm, Skadden Arps, which was filed by a lawyer claiming he was working as a non-lawyer and was entitled to overtime. Judge Sullivan ruled that the lawyer(s) were exempt from the FLSA under the professional exemption in 29 USC 213(a) as licensed attorneys practicing law. The case is entitled Lola v. Skadden Arps Meagher Slate & Flom LLP and had been filed in the Southern District of New York.
The named plaintiff claimed his document review work was routine and “mechanical” in nature and did not require any legal knowledge or training. Interestingly, the Judge stated that it seemed unfair that these lawyers should not receive overtime when a properly trained and supervised non-lawyer could have done this work, but as the plaintiff was a licensed attorney he was, in fact, engaged in the practice of law and therefore exempt.
The plaintiff’s attorney stated that they will appeal, on the theory that in order to be considered practicing law, an individual had to use/apply his legal knowledge and be exercising discretion. This was hotly contradicted by the defendants who contended, in their motion to dismiss papers, that the assertion that a licensed attorney doing document review was not practicing law was “flawed and refuted by the FLSA, overwhelming legal authority and common sense.” Plaintiff rebutted by claiming that the exemption applies only to those “actually engaged in the practice thereof.”
The Judge stated that the Congress and the US Department of Labor could revisit the regulations and law given the circumstances (e.g. many lawyers doing document review as their job) that the legal profession faces. This is, perhaps, most especially so for young lawyers starting out, faced with oftentimes a long and grueling process of finding a “real” job.
The plaintiff’s lawyer will appeal to the Second Circuit. I “boldly” predict the result will be the same.
To be continued…