United Contract Attorneys has submitted a position statement to the Department of Labor Wage and Hour Division's proposed rule, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, advocating for contract attorneys to recieve 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breakdown of document review work as the sole task of Contract Attorneys makes the O*NET occupational code for lawyers outdated, as this resource contains a description of the tasks of a more traditional lawyer: going to court, writing briefs, meeting with clients, and so forth.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.