Contract lawyer in U.S. claims he is entitled to OT pay due to “extremely routine nature” of the job; seeks class action status

6 March 2013– A lawyer who performed document review for Quinn Emanuel Urquhart & Sullivan on a contract basis claims in a lawsuit that he is entitled to overtime pay for work in excess of 40 hours a week.

The plaintiff, New York lawyer William Henig, claims he typically worked 57 to 60 hours a week in the position that began in August 2012 and lasted about six weeks.  Am Law Daily and Above the Law have reported on the case and it has been rocketing around numerous social media sites.  Above the Law has provided a link to the case (click here).   The suit claims the “extremely routine nature” of Henig’s work makes him a nonexempt employee under state and federal laws, entitling him to be paid at one and a half times his hourly rate for overtime.

Henig says he received an hourly wage from the defendants and generally worked 57 to 60 hours each week. Henig alleges he was paid his regular hourly wage for the hours he worked in excess of 40 hours each week, as opposed to the one-and-a-half times that amount required under FLSA overtime rules. (The complaint does not specify how much Henig was paid per hour.)

Named as defendants are Quinn Emanuel and the temp agency that placed Henig, Providus New York. The suit seeks class action status.

Henig is represented by D. Maimon Kirschenbaum who was quoted in Above the Law:  “I have been arguing for years that contract attorneys are entitled to overtime pay under the [Fair Labor Standards Act] and New York law.  However, I have found that contract attorneys tend to be reluctant to file such suits out of fear of being blackballed in the industry.”

As a non-exempt employee, Henig would be entitled to overtime pay at 1.5 times his regular hourly wage under the Fair Labor Standards Act. Since he alleges that he was required to work 57 to 60 hours per week, we’re talking about up to 120 hours of overtime pay for his time at the firm.

But Henig may have a hard time making his case. For most professions, an individual is an exempt employee if he:

1. Is paid at least $23,600 per year (or $455 per week).
2. Is paid on a salary basis.
3. Performs exempt job duties.

Lawyers are considered exempt professional employees since they generally perform work requiring advanced education or training. Exempt jobs tend to be intellectual jobs requiring specialized education and involving the use of discretion and judgment.

And that’s why Henig details the “routine” nature of his job in the complaint. He’s essentially arguing that he worked as a glorified paper pusher, not an attorney. If he wins, it could change the way that contract attorneys are compensated.

Could there be a common denominator between large plaintiff firms engaged in complex or class action litigation and either inequitable compensation or unreasonable fees when compared to that level of compensation?  It will be interesting to see how this litigation proceeds in relation to the Citibank case we reported on earlier this week where the firm was required to divulge information on contract lawyers (click here).

Points made by Posse List members commenting on the Henig case on several web sites:

*You would think the IRS would be pushing this position, and going after the firms for penalties due to massive missclassification of workers. So many of the factors are against the firms, which tend to provide the facilities, location and conduct rules for the reviews.

*Software has automated doc review, much like robots on the assembly line. That’s got to count for something.

*Assuming this contract attorney was primarily doing doc review, just at the actual firm office, this seems like a problem of location. Doc review projects I worked on were off-site, and we were paid overtime. The given firms just strictly controlled when OT hours were approved and to what extent.