As I mentioned previously, the current market rate for non-foreign language contract attorney work in the Washington D.C. area is $35 an hour with time and a half for overtime. However, I’ve noticed a few projects out there trying to convince contract attorneys to accept a less attractive flat rate with no overtime. While the flat wage rate is slightly higher at around $38 to $42 an hour, you are deprived the overtime benefit of time and a half, which is how contract attorneys usually make the bulk of their money.
An interesting issue that I’ve been wondering about is whether some of these flat rate agencies and law firms are violating the Fair Labor Standards Act (FLSA) by not providing its employees time and a half compensation for time worked beyond 40 hours.
Does FLSA Require Contract Attorneys To Be Paid Overtime?
I’m not attempting a complete legal analysis but my understanding of FLSA in the matter boils down to the following. Under the FLSA ,workers who are not otherwise exempt from the statute are guaranteed the right to overtime pay, or time and a half for every hour worked beyond the normal 40 hour work week. For white collar workers such as attorneys, three basic tests determine whether they are exempt from FLSA overtime requirements. If they fulfill the three basic tests, they are exempt and thus not required to receive overtime pay. If they are not exempt, they are eligible for overtime.
To be exempt from overtime, contract attorneys must satisfy the following tests:
- Salary Level Test – Firstly, employees earning less than $23,600 per year ($455 per week) cannot be exempt. Average contract attorneys are almost certainly exempt since they are likely to earn more than the threshold.
- Salary Basis Test – Secondly, employees must be paid a set salary and not an hourly wage in order to be exempt. However, the FLSA actually excludes lawyers from this requirement, and thus lawyers may be considered exempt even if they are paid hourly.
- Duties Test– Thirdly, a worker cannot be denied overtime pay unless his or her duties are primarily administrative, professional, or executive in nature.
I think as an initial matter, contract attorneys are not independent contractors, since we are at-will employees of the agency or law firm that employs us.
Under the tests outlined above, I believe contract attorneys are exempt from the overtime requirements of the FLSA. The only question regarding overtime exemption is the third duties test of whether contract attorney work is considered professional in nature. Can we really consider document review work to be professional in nature and not merely clerical? I submit that it is. While document review does not entail mind blowing legal skills to say the least, it does require understanding of legal procedure and terminology. The legal skills and analyses required are dependent on the type of project and on the level of expected interaction between contract attorneys and managing associates. As contract attorneys, we support the project and oftentimes may be called upon to provide our legal opinion to the team and draw upon our prior experience, e.g. discussing privilege claims issues.
Additionally, as licensed professionals, we are also subject to all applicable standards of practice and conduct while on the job. Therefore, even if it is document review, it constitutes the practice of law and ethical violations such as over-billing could lead to bar sanctions.
Thus, while I don’t believe contract attorneys are statutorily required to receive overtime compensation, I do note that it has become common expected practice for document reviewers to be paid in such fashion. Currently, I don’t think there is industry consensus about whether contract attorneys are exempt from overtime requirements under FLSA. How the overtime compensation trend got started I’m not sure, but most contract attorneys today request overtime compensation and agencies predominantly oblige. I think law firms and agencies agree to pay the extra overtime now for competitive reasons rather than legal obligation. Like some commentators have pointed out, we are a finite resource.