The latest chapter in a series of lawsuits filed by temporary contract attorneys against their employing law firms was written by Judge Ronnie Abrams of the United States District Court for the District of New York. As the final seconds ticked down towards the end of 2015 last week, the clock also struck midnight on wage & hour claims filed by a putative class of temporary contract attorneys against Quinn Emanuel Urquhart & Sullivan LLP (“Quinn Emanuel”). Judge Abrams’ order dated December 30, 2015 found plaintiffs’ claims seeking payment of overtime wages to be without merit and ordered them dismissed.
The lawsuit, Henig v. Quinn Emanuel Urquhart & Sullivan, LLP et al., involved contract attorneys who were hired by Quinn Emanuel to review thousands of documents related to ongoing litigation matters.[1] The contract attorneys’ primary function was to review batches of documents for relevance and privilege and determine whether the documents should be produced within the relevant litigation. William Henig, the lead plaintiff in the lawsuit, and the rest of the putative class of Quinn Emanuel contract attorneys alleged they were routinely required to work over 40 hours per week while conducting the review. Plaintiffs further alleged that despite their schedule, they were never paid the overtime wage rate required by the Fair Labor Standards Act of 1938 (“FLSA”).
The FLSA requires overtime pay at time and one-half the regular rate of pay for all hours worked by an employee over 40 hours in a work week unless an exemption applies. The FLSA sets forth several exemptions applicable to executive, administrative, highly compensated, and professional employees. The exemption which typically applies to attorneys is the professional exemption based on the FLSA provision explaining, “[a]ny employee who is the holder of a valid license or certificate permitting the practice of law… and is actually engaged in the practice thereof” is an “employee employed in a bona fide professional capacity” and therefore exempt under the Act. Nevertheless, Mr. Henig and his colleagues argued that the routine and mechanical review of documents with which they were tasked was more akin to manual labor than “actually engag[ing] in the practice [of law].”
Judge Abrams agreed to disagree.
The court’s order empathized with the contract attorneys’ claims, agreeing “their jobs have less to do with the development of the human race or the law than with tasks that are necessarily repetitive in nature… and banal in character.” However, Judge Abrams eloquently opined[2] that it is a reality of the practice of law, “[p]articularly in a litigation in which a good deal of money is at stake, [that] attorneys must review thousands if not millions of documents… using their legal judgment.” Therefore, while Mr. Henig’s work may not have been “law at its grandest,” it nevertheless was unequivocally the practice of law.
This lawsuit is a rare victory for employers at a time the Department of Labor is pushing for employers to reclassify more and more independent contractors as employees and considering a proposed rule change that could potentially result in approximately 4.6 million exempt workers being re-classified as non-exempt workers. However, the victory could be short-lived considering the 2nd Circuit’s[3] recent ruling in the very similar case of Lola v. Skadden, Arps, Slate, Meagher & Flom. In Lola, the 2nd Circuit revived the previously dismissed overtime claims of North Carolina contract attorneys engaged in similar document review, explaining that the “district court erred in concluding that engaging in document review per se constitutes practicing law in North Carolina.” Judge Abrams distinguished his decision in Henig from Lola primarily on the grounds that (1) there are different standards under North Carolina and New York jurisprudence for “engaging in the practice of law;” and (2) the Lola plaintiffs alleged their work was entirely mechanical, while the Henig plaintiffs alleged their work was predominantly mechanical and required the exercise of some discretion.
[1] It is common for large law firms such as Quinn Emanuel to outsource large-scale document review projects to contract attorneys.
[2] The order begins with a quote from Oliver Wendell Holmes, explaining “[t]he history of law… ‘is the history of the moral development of the race.’”
[3] The District of New York appeals to the 2nd U.S. Circuit Court of Appeals.
