Many recent law school graduates and newly licensed attorneys work on document review projects while searching for stable, long-term employment. Most document review companies hire employees on a project-to-project basis and compensate those employees with an hourly wage. For many projects, the applicable compensation policy provides that employees are to be paid at the regular hourly rate for all hours worked, including any hours worked in excess of forty per week. Depending on the nature of each project and the duties of document reviewers, this practice may run afoul of Massachusetts’ Overtime Law and the Fair Labor Standards Act (“FLSA”).
Document review companies ostensibly withhold overtime pay under the belief that document reviewers are exempt from Massachusetts’ and the FLSA’s overtime requirements pursuant to the respective exemptions for learned professionals. See 29 U.S.C. § 213(a)(1); M.G.L. c. 150, § 1A(3). A closer look at how these exemptions are applied and by courts reveals that many who perform low-level document review are entitled to overtime.
The FLSA exempts from its overtime requirements “any employee employed in a bona fide . . . professional capacity[.]” 29 U.S.C. § 213(a)(1). However, for an employee to fit in this exemption, they must be paid a salary. For most professions, an employee must be paid a salary of at least $684 per week to fall within the exemption. 29 C.F.R. § 541.300. Another requirement of the exemption is that an employee’s primary duty must require either “knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized instruction” or “invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.” 29 C.F.R. § 541.300(a)(2). Alternatively, employees who hold a valid law license and are “actually engaged in the practice of law” automatically fall within the learned professional exemption of 29 U.S.C. § 213(a)(1) regardless of whether they are paid a salary in accordance with 29 C.F.R. § 541.300. See 29 U.S.C. § 541.304(d). The Massachusetts learned professional overtime exemption’s language is nearly identical to the FLSA’s, and it has largely been interpreted to mirror the FLSA exemption’s reach.
Accordingly, if you are an unlicensed law school graduate performing document review work for hourly pay, you are entitled to overtime pay for all hours worked in excess of forty per week. Because you are unlicensed and not paid a salary, you are a nonexempt employee under the FLSA.
If you are a licensed attorney performing document review work on an hourly basis, a more complicated analysis is required: Whether you fall within the exemption depends on whether the work you perform constitutes “the practice of law.” See 29 C.F.R. § 541.304(a)(1). According to the United States Court of Appeals for the Second Circuit, document review does not constitute the practice of law where the employee is merely applying criteria developed by someone else, with no room for the exercise of independent judgment.
In Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, the plaintiff was a licensed attorney whose alleged responsibilities were limited to “(a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided.” Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, 620 F. App’x 37, 40 (2d Cir. 2015). The Second Circuit explained that plaintiff was only exempt from the FLSA’s overtime requirements if he was “engaged in the practice of law” under the laws of North Carolina, where plaintiff performed his document review work. The court found that, like most other states, North Carolina law required “the exercise of at least a modicum of independent legal judgment” for an activity to constitute the practice of law. The court went on to hold that because plaintiff alleged that “he performed document review under such tight constraints that he exercised no legal judgment whatsoever”—effectively providing “services that a machine could have provided”—he stated a claim for unpaid overtime under the FLSA that was not barred by the 29 U.S.C. § 213(a)(1) exemption. Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, 620 F. App’x 37, 45 (2d Cir. 2015).
While the question has yet to be squarely addressed by any Massachusetts courts, there is reason to believe that courts in this Commonwealth would come to the same conclusion as the Second Circuit. See Real Est. Bar Ass’n for Massachusetts, Inc. v. Nat’l Real Est. Info. Servs., 459 Mass. 512, 525–26 (2011) (explaining that activities which “do not themselves require the provision of legal advice or legal opinions, or the application of legal judgment to meet the individual needs of a client” do not “constitute the practice of law.”). Notably, the damages for unpaid overtime under Massachusetts law are substantial: three times the overtime wages you should have been paid, plus attorneys’ fees and the costs of litigation. M.G.L. c. 149, § 150.
If you have performed document review work in excess of forty hours per week without receiving overtime pay within the last three years, you may have a valuable claim for unpaid wages. We evaluate cases confidentially and at no cost to you. You can reach us by phone at (617) 338-9400, by email at firstname.lastname@example.org, or by filling out the form below.