This story by Rebekah Mintzer describes how pharmacy workers at a Brooklyn, New York, Target store opted to organize in a “micro union." It's inspiring to see the way different groups of workers find ways to organize and advance their collective interests.
In this article, Gabe Friedman covers the issue of the Department of Labor Wage and Hour Division's proposed overtime rule and the discussion among contract attorneys concerning whether or not we should advocate for overtime pay.
Below is the conclusion, and you can read the entire comment here.
The legal industry in the past twenty years has changed enormously with the advent of technology and law firms' reliance on agencies, who employ tens of thousands of temporary Document Review, or Contract Attorneys, to determine the relevance of hundreds of thousands of documents as an essential component of the practice of law during the discovery phase of litigation. Many of these documents, when relevant, require a thoughtful analysis based on the legal protocol of the case, a task that does entail the independent legal judgment and discretion acquired in law school and during the practice of law. Many are also irrelevant images, news articles, and duplicate documents which do not require much independent legal judgment to ascertain they are not relevant, or how to tag them, and this part of the work is more likely categorized as routine mental work.
Beyond the often tedious and routine nature of document review, Contract Attorneys are paid precipitously low wages, currently averaging from $19.00 an hour to $35.00 an hour, on a project to project, as needed basis, with some Contract Attorneys’ salaries falling short of the proposed $970 weekly salary basis applied to the EAP. Adding the undue student debt burden of their advanced degrees drops their actual earnings even lower, making the presumption that lawyers earn high professional salaries such that they should be automatically exempt as licensed professionals abysmally wrong.
Furthermore, the breakdown of document review work as the sole task of Contract Attorneys makes the O*NET occupational code for lawyers outdated, as this resource contains a description of the tasks of a more traditional lawyer: going to court, writing briefs, meeting with clients, and so forth. While the UCA maintains that Document Review Attorneys do practice law and exercise independent legal judgment, given the stark difference in function to the traditional lawyers, the UCA requests a new occupational code of document review attorney and an exception to the licensed professional exemption such that Document Review Attorneys qualify for overtime classified rather, as an EAP, specifically that of the learned professional employee category.
To qualify Contract Attorneys for overtime, the DOL then should adopt the California 50% primary duties test. When applied to Document Review Attorneys, the 50% rule qualifies them for overtime because less than 50% of their work requires the exercise of professional legal judgment and discretion, with more than 50% encompassing the often tedious and routine work of marking easily recognizable non-relevant or duplicate documents. The percentages can be determined based on the responsiveness rate of the documents themselves.
The DOL should go even further and allow an hourly salary basis for temporary workers such as Document Review Attorneys – some of whom, while considered “temporary,” have worked over a decade in the industry and are most in need of the protections of FLSA. More specifically, the DOL should carve out a $35.00 per hour industry-specific hourly salary basis under which overtime would automatically be granted, given attorneys’ greater student debt load. This sort of exception already has a precedent in the motion picture and computer industries, where the proposed weekly and hourly salaries often exceed that of the Contract Attorney. Contract Attorneys equally merit such protections, as originally intended by the FLSA, while preserving their professional dignity and closing the floodgates of pending litigation like the ongoing Lola v. Skadden case, which risks granting overtime to Contract Attorneys at the cost of demeaning their years of hard work in law school and beyond. Even the Court hinted in its decision that the Secretary of Labor has the authority to change the regulation. The Secretary of Labor would be wise and kind to consider such reasonable and just proposals to preserve the professional dignity of practicing lawyers, and the integrity of the already-disappearing middle class.
The Posse List Covers UCA's Call to Action on DOL WHD's Proposed Overtime Rule
August 29, 2015 & September 2, 2015
The Posse List assited United Contract Attorneys by forwarding our Call to Action which requested that contract attorneys comment on the Department of Labor Wage and Hour Division's proposed rule regarding overtime pay.
The Posse List also published a number of responses to our call to action, including that of several document review attorneys who did not agree that contract attorneys should be advocating for overtime pay. While we don't all agree, this is the kind of discussion which needs to take place among temporary document review attorneys. Simply beginning the conversation brings us that much closer to having all contract attorneys working collectively to improve our situation within the legal industry.
New York City Limits Credit History Use Beginning September 3rd
August 20, 2015
By Kristine Sova
This post by Kristine Sova describes the new NYC law which makes it "illegal for covered employers in New York City to request or use an employee's or applicant's consumer credit history to make employment decision."
At this time, it is unclear whether contract attorneys would fall under the exemption for "Non-clerical positions having regular access to trade secrets, intelligence information or national security information," and thus still be subject to credit checks when being considered for their positions by agencies.
Contract attorney lawsuit against Skadden Arps can proceed, appeals court says; case could enable temporary lawyers hired for routine document review to earn extra wages
July 23, 2015
This story posted on The Posse List describes how the Second U.S. Circuit Court of Appeals vacated the jugment of the United States District Court for the Southern District of New York granting Defendant's Motion to Dismiss in the case of Lola v. Skadden.
Contrary to what some in the press and document review industry have concluded, this does not mean that the Second Circuit ruled that contract attorney work is not legal work. When deciding on a Motion to Dismiss, the Court must assume that all facts alleged by the Plaintiff in their complaint are true. The Second Circuit simply found "that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants." This only means that the case can now proceed, and Lola will have to prove his allegations to the lower court.
This blog post from Joshua Neil Rubin promotes an interesting alternative to the contemporary system of document review. As a group which relies on the collective power of our members, collaboration is something the UCA believes very strongly in. It certainly seems like it could be a better model than the current hierarchical decision-making approach used in document review.
Epiq Settles with NLRB Complainant Contract Attorney
June 4, 2015
It has come to the attention of United Contract Attorneys that Epiq has settled an NLRB complaint with a temporary contract worker. Epiq sent a notice to their employees on Thursday, 06/04/2015, pursuant to a Settlement Agreement approved by the Regional Director of Region 2 of the National Labor Relations Board in Case 02-CA-145332, which states the following. We've decided to withhold the employee's name at this time, but if anyone knows this individual, please invite them to our next meeting or ask them to contact the UCA.
"FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;
• Choose a representative to bargain with us on your behalf;
• Act together with other employees for your benefit and protection;
• Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT discharge our employees because they engage in protected concerted activities by discussing overtime hours and pay.
WE WILL NOT interrogate our employees because they engage in protected concerted activities by discussing overtime hours and pay.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act.
WE HAVE reinstated (Name withheld by UCA), without any loss of wages or benefits, to his document reviewer position and he has completed the two week project for which he was employed.
WE WILL consider (Name withheld by UCA) for employment on future projects for which he applies.
WE WILL remove from our personnel records any reference to the January 17, 2015 discharge of (Name withheld by UCA), notify (Name withheld by UCA) when we have removed these records and we will not rely on these records when making any future employment related decisions involving (Name withheld by UCA)."
While this is good news, please do not take this as carte blanche to engage in these activities during working hours when you are not on a documented break. We do not believe that Epiq is intending to lie down and allow organizing on their projects. In fact, the events that lead to this settlement will not likely occur again because their counsel has likely already worked out ways to discharge employees who they see as trouble makers. Still the safest way to organize is after hours off the companies' premises.
Are Contract Attorney Markups Of Any Concern to Clients?
June 2, 2015
by Gina Passarella
This article by Gina Passarella focuses on the markup firms charge to clients for document review services provided by contract attorneys. Rather than questioning why document reviewers are paid so little for the valuable services they provide to the legal profession, this article paints document review as rather valueless.
Have you been following the news coverage of the Lola v. Skadden matter? If you have, you've probably seen that United Contract Attorneys made themselves noticed at the oral arguments. Check out the coverage in Bloomberg BNA, The Wall Street Journal, and The Posse List!
We didn't expect so much coverage, but we are out there and fighting! If you are a contract attorney, please submit comments online to raise more awareness and garner more support!
United Contract Attorneys (UCA) has been approached regarding their position concerning the Lola v. Skadden matter which is currently pending in the 2nd Circuit. In this case, Lola, a contract attorney, has sued the agency (Tower) and law firm (Skadden) which hired him to do document review for failure to pay overtime.
The UCA would first like to express solidarity with Lola as a fellow contract attorney who has been exploited and underpaid by firms making exorbitant profits from his labor. As a group of workers organizing to create better rates, conditions and experiences for lawyers working in document review, members of the UCA can sympathize with someone like Lola who is struggling with student loan debt in a profession he expected would adequately compensate him for his investment.
As Lola's case was dismissed prior to any discovery concerning the nature of his work, it is impossible to comment on whether or not Lola was engaged in the practice of law and therefore exempt from the FLSA's overtime requirement. In general, however, the UCA maintains that contract attorneys use their legal training and professional discretion regularly while doing the majority of the work in the indispensable discovery phase of litigation and therefore deserve to be paid as such.
Despite performing invaluable functions in the litigation process, document review attorneys are under constant assault by their very employers who have sought to reduce their pay at every opportunity. Burdened with massive student debt, document review attorneys can oftentimes not even afford to live in the very city in which they work. This leads to extra money and time spent commuting to a job where they are often required to work 60 hours a week for $25 an hour or less while being billed out to the client for 10 times that amount. This plight of overworked and underpaid contract attorneys is simply another example of the shrinking of the middle class in the United States.
This situation, caused by firms like Skadden and agencies like Tower, is clearly untenable, and many of us have had enough. Firms often bill clients much more than they are paying their document review attorneys, and United Contract Attorneys demand proper equitable wages based on our education and experience and on the value we bring to the firms.
Securing a Document Review Center: A Practical Guide via Corporate Counsel
May 13, 2015
by Michel Sahyoun
This article by Michel Sahyoun illustrates the mindset of those who feel that contract attorneys cannot be trusted to maintain a secure and professional workspace. People like Sahyoun are the reason that conditions for contract attorneys have been deteriorating. Part of the reasoning being that "temporary employees may not feel the same obligation to protect their employers' data, nor will they likely face the same negative consequences of doing so (harm to reputation and career growth) as permanent, longer-tenured employees."
So, not only does this article perpetuate offensive and unprofessional presumptions, it excuses firms who create the very conditions of temporary employment then blames the temporary attorneys for not having any incentives to protect their employers' data.
A warning also that Sahyoun misgenders Chelsea Manning and uses her dead name, so there is a touch of transphobia in the article as well.
There Are Too Many Lawyers, Say Law Firms: Big law is running out of work via BloombergBusiness
May 13, 2015
by Natalie Kitroeff
This article by Natalie Kitroeff states that "[a] majority of managers at firms say they employ too many lawyers and those lawyers are not busy enough, according to a survey released Tuesday by consultancy Altman Weil."
If this trend continues, contract attorneys may begin facing even greater competition from more attorneys being forced to leave their full-time positions to pursue temporary document review work.
Lawyers With Lowest Pay Report More Happiness via The New York Times
May 12, 2015
by Douglas Quenqua
According to this article by Douglas Quenqua, lawyers in public-service jobs report more happiness than those in traditional jobs at big firms which pay more. Part of the reason is that higher paying jobs do not provide "feelings of competence, autonomy or connection to others...."
There is no discussion in the article concerning whether underpaid, temporary document reviewers were more or less happy than lawyers employed on a full-time basis at big firms.
New York to Adopt a Uniform Bar Exam Used in 15 Other States
May 5, 2015
by Stephanie Clifford and James C. McKinley Jr
This article by Stephanie Clifford and James C. McKinley Jr discusses how the state of New York has recently adopted the Uniform Bar Exam, which is currently given in 15 other states. This raises concerns about the possible Influx of attorneys from others states willing to take lower rates, but it could also be an organizing opportunity to build solidarity with attorneys in other areas.
Burdened With Debt, Law School Graduates Struggle in Job Market via The New York Times
April 26, 2015
by Elizabeth Olson
This article by Elizabeth Olson discusses the difficulty faced by many recent law school graduates who have large debts but few job prospects. Interesting that the attorney featured in the article still makes over $100 an hour, which is 4 to 5 times what many contract attorneys make, and this attorney is still considered to be "struggling."
Also noteworthy in this article is the brief mention of document review by one contract attorney as "rote legal temp work on the side to pay rent" and something that makes an attorney "nonprestigious and unemployable." Contract attorneys need to start challenging the narrative that our profession is not a "real job" or that what we do is somehow less worthy of respect. Our work is critical to the discovery process and the legal profession.
Document review workers launch class action against Deloitte via LegalFeeds
March 12, 2015
by David Dias
This story out of Canada by David Dias is about the class action lawsuit having some similarities with the US case Lola v. Skadden which is currently before the 2nd Circuit. Like Lola v. Skadden, part of the Canadian case turns on whether or not document review constitutes the practice of law.
As an aside, contract attorneys in Canada seem to be making slightly more than many currently working in the United States.
Doc Review is Unequivocal 'Practice of Law,' US Judge Says in Dumping Contract Attorney's Overtime Suit via ACEDS
October 9, 2014
by Robert Hilson
This article by Robert Hilson describes the case of Lola v. Skadden in which Lola, a contract attorney, sued his employer for overtime wages after being paid $25 per hour. The case was dismissed by the lower court holding that Lola was engaged in the practice of law and, therefore, exempt from any labor laws requiring overtime pay. This case is currently up on appeal in the 2nd Circuit.