Comments on: Are Contract Attorneys Required To Be Paid Overtime?

By: Exploited DC Lawyer

Exploited DC Lawyer — Mon, 22 Mar 2010 23:06:50 +0000

Section 7(a)(1) of FLSA requires overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. However, §13(a)(1) carves out exception for “any employee employed in a bona fide executive, administrative, or professional capacity.” FLSA’s implementing regulations are found in chapter V of Title 29 of the Code of Federal Regulations . Part 541 of the regulations define and delimit the statutory term “any employee employed in a bona fide executive, administrative, or professional capacity” while Subpart D of this part specifically addresses professional employees.

Section 541.300(a)(1) provides, in part: “The term `employee employed in a bona fide professional capacity’ in section 13(a)(1) of the Act shall mean any employee: (1) Compensated on a salary or fee basis at a rate of not less than $455 per week….” Section 541.304 addresses the specific practice of law and medicine. Section 541.304(a)(1) provides, in part: “The term `employee employed in a bona fide professional capacity’ in section 13(a)(1) of the Act shall also mean [a]ny employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is ACTUALLY ENGAGED IN THE PRACTICE THEREOF….” [Emphasis added].

Although initially appearing redundant to §541.300, the apparent purpose of §541.304 is to distinguish the practice of law and medicine from other professions, and to specifically exempt those two professions from the salary requirement of §541.300(a)(1). This is done through §541.304(d), which specifically provides: “The requirements of Sec. 541.300 and subpart G (salary requirements) of this part do not apply to the employees described in this section.”

Section 541.304(a)(1) provides a two-part test for an attorney’s inclusion into §13(a)(1) exception: 1) the attorney must be a holder of a valid license or certificate permitting the practice of law, and 2) the attorney must be actually engaged in the practice of law.

If you’re in DC, see D.C. Court of Appeals Committee on the Unauthorized Practice of Law Opinion 16-05 entitled: “Compliance with Rule 49 by ‘Contract’ Lawyers in the District of Columbia.” Basically the opinion says whether you’re practicing law depends on how you’re held out and billed to the clients. For the most part, DC agencies bill contract attorneys as paralegals or some other sort of professional, but not as attorneys.

Thus, contract attorneys should be either excluded from §13(a)(1) as paralegals under 29 CFR §541.301(e)(7) or excluded from §13(a)(1) because they do not meet the salary basis required by 29 CFR §541.300(a)(1). In sum, “straight time” is illegal. The agencies simply count on our fear of black listing to keep this illegal secret. I hope this useful to someone who is the position to fight this fight. For the Dept. of Labor summary see:

http://www.dol.gov/whd/regs/compliance/fairpay/fs17d_professional.htm

By: Charles Scalise

Charles Scalise — Mon, 27 Apr 2009 19:51:39 +0000

I am an attorney in Austin, Texas and I presently represent a plaintiff in a collective action under the FLSA who is a lawyer and who was hired to review documents. We do not believe that the work performed by our client rose to the level of the professional exemption under the FLSA and therefore he was non-exempt. If anyone would like to speak with me privately about this case, I can be reached at 512-474-7677.

By: Jen

Jen — Wed, 08 Apr 2009 17:08:44 +0000

Does anyone know the name or any other details of the case in Washington that Joe refers to above? The overtime issue is still a live topic. I’ve done document review for years and have noticed that certain employers do not comply with overtime requirements.

By: Jeff Manners

Jeff Manners — Mon, 24 Mar 2008 20:34:09 +0000

I think we are missing the issue here. If the contract attorney has steady work from the employer whereby he earns over the statutory amount, then he may be an exempt professional. If the contract attorney is not paid the requisit amount by the law firm or agency, then the attorney should be paid time and a half for each hour worked over 40 in each work week.

By: Joe Miller

Joe Miller — Wed, 03 Oct 2007 01:56:53 +0000

I know that there was some litigation in Seattle on this topic. The court held that contract attorneys performing document review are not practicing law and are, therefore, entitled to overtime pay.

Contract attorneys should still receive overtime pay, especially in D.C., a jurisdiction in which contract lawyers are required to pass the D.C. bar exam, or waive into D.C., in order to be entitled to the $35/hr. rate, regardless of whether they are barred in other jurisdictions, such as New York, with higher bar passage standards (more subjects to study for) than D.C.

Additionally, D.C. lawyers, at many large firms, received raises to $160,000, not including bonuses, which are around $30,000+/yr.–the New York salary–even though the D.C. cost of living is below that of New York.

Therefore, the time and a half in overtime that contract attorneys receive is a mere pittance, compared to what clients would otherwise have to pay a team of full-time associates, to do the same work.