Contract lawyer gets no FLSA overtime pay

[ NOTE: The decision reported here was reversed on appeal. See Was lawyer doing robot work, so FLSA overtime is due? ]Hey, he's a lawyer who's practicing law.

David Lola is a lawyer who got hired by a legal staffing company to perform services for the Skadden Arps law firm. Lola did his work in North Carolina - reviewing documents relating to litigation pending in federal court in the Northern District of Ohio. Lola is a licensed lawyer, but is not admitted to practice law in either North Carolina or the Northern District of Ohio.

Lola sued both the staffing company and the law firm claiming entitlement to overtime pay. [Opinion: Lola v. Skadden, Arps (SD NY 09/16/2014).]

The defendants argued that Lola was exempt from overtime due to his status as a professional employee.

The overtime provision of the FLSA requires employers to pay employees one and one-half times the regular rate of pay for any hours worked in excess of forty per week, but exempts from this requirement

any employee employed in a bona fide . . . professional capacity.

Department of Labor regulations provide that

(a) The term “employee employed in a bona fide professional capacity” in section 13(a)(1) of the Act also shall mean:

(1) Any 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.

Lola argued that his work was not the practice of law because it was “mechanical” and “did not involve the use of any legal judgment or discretion.”

The court said it needed to use state law standards in interpreting the federal "practice of law" rule.

And which state? The state where the work was performed (North Carolina). Not the state where the litigation was pending (Ohio), not the state where the law firm and staffing agency had their principal place of business (New York), and not where Lola had his law license (California).

According to a North Carolina ethics opinion, document review is the practice of law.

So sorry, Mr. Lola, you were practicing law, and not entitled to FLSA overtime.