If You're Not Getting Paid Overtime, Are You Owed a Ton of Money?

 

 Man carrying documents I came across this interesting article that, once again, brings up the overtime issue for paralegals.  This issue is so old and so ongoing, I am sure we'll be telling our great-grandchildren about it.

Whether you want to be paid overtime or not, the Labor Department ruled several times over the years, actually, and again in 2006 that paralegals are non-exempt, meaning you are supposed to get paid overtime.

While there are some paralegals who argue that they prefer to have a professional status, I do not know of any paralegal who, once they were getting an additional $300 a week or $1200 a month in salary beyond their base compensation, said, "You know, forget all this.  I want to be called a professional. Take the money away, keep me working 60 hours a week, give me a professional status and reduce my income by 20%." 

For all intents and purposes, the legal community recognizes paralegals already as professionals.  One indicator is to whom the paralegal reports on the organizational chart.  Paralegals are on the attorney side of the chart while secretaries are on the HR or Office Administrator side.

Here is the article as found in the Connecticut Law Review:

Lawyer As Employer: Who In Your Office Is

Entitled To Overtime? 

                          
|                                     T
hose paralegals might not really be exempt employees.

 By ROBERT G. BRODY and SAMI ASAAD

 

In our last article, we provided a self-audit for lawyers to assess their proficiency as employers. The next two articles cover many of the pay-related issues common to law firms. We begin with an overview of federal and state overtime requirements, including relevant exemptions, plus an analysis of one hard-to-classify employee: the paralegal.

As you probably know, the Fair Labor Standards Act (FLSA) and Connecticut’s wage and hour laws require most employees (called “non-exempt”) to receive minimum wage plus overtime at time-and-a-half for all hours worked each week over 40.

Also, employers must maintain records of all hours worked by non-exempt employees. “Exempt” employees are exempt from those requirements. In a law firm, where 9-5 hours are not the norm, it is important to know who is exempt and who is not, especially with rising wage and hour investigations and class actions.

Exemptions

While several exemptions exist under the FLSA and Connecticut statutes, the ones most relevant to law firms are the “executive,” “administrative,” and “learned professional.” As lawyers, we know words have different meaning in the law than in everyday life. So you should not be surprised that under the FLSA, your firm’s “administrative professionals” (i.e., secretaries) are likely neither “administrative” nor “professional” employees. Qualifying as exempt requires passing two tests: the salary test and the primary duties test.

The salary test is usually straightforward: exempt employees in Connecticut must receive a minimum salary of $475 per week. As a salary, it must be paid regardless of the number of hours worked and may be subject to only a few statutorily permitted deductions (e.g., full-day absences for reasons other than sickness or accident).

The primary duties test requires careful analysis and is where many employers make mistakes. To qualify as exempt from overtime, employees’ duties must match those in the statutory definition of “executive,” “administrative,” or “learned professional.”

In general terms (there are extensive regulations), executive employees primarily manage the business, and regularly direct the work of two or more employees. Administrative employees perform office work directly related to management policies or general business operations of their employer and regularly exercise discretion and independent judgment. Learned professionals primarily perform work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study. Lawyers performing lawyer work are a classic example of learned professionals.

What About Paralegals?

Consider a paralegal with a two-year legal studies degree and eight years of experience in legal research and analysis. Ninety percent of the paralegal’s time is spent analyzing facts, identifying the legal issues involved, and then providing an interpretation of the law in memorandum format for attorneys to review. Although attorneys suggest deadlines, the paralegal works very independently.

Ten percent of the paralegal’s time is spent reviewing new materials, analyzing costs of current resources used in the department, drafting plans for cost savings for the department, training various personnel on the use of legal resources and legal research in general, and performing other miscellaneous tasks. Exempt? According to a 2006 opinion letter by the U.S. Department of Labor, the answer is no.

The Labor Department first evaluated whether the administrative exemption applied and found the work was not “directly related to the management policies or general business operations” of the firm. Examples of qualifying work include tax, accounting, auditing, and human resources activities. Thus, administrative work is different from the “production” work of the business. Since what the paralegal did was part of the firm’s “product,” it did not qualify as administrative.

Also, there was no discretion in “matters of significance” such as the formulation, interpretation, or implementation of management policies or operating practices. The Labor Department stated, “It has long been the position of the [department] that the duties of paralegal employees and legal assistants generally do not involve the exercise of discretion and independent judgment of the type required by the administrative exemption.”

Are Paralegals ‘Professionals?’

Citing a specific regulation on paralegals, the Labor Department found the learned professional exemption generally does not apply because although many paralegals have four-year degrees, “an advanced specialized academic degree is not a standard prerequisite for entry into the field.”

One bit of good news is paralegals with “advanced specialized degrees in other professional fields [e.g., law, science, or medicine] and [who] apply advanced knowledge in that field in the performance of their duties” may qualify as learned professionals. The regulation provides as an example an engineer/paralegal providing “expert advice on product liability cases or to assist on patent matters.”

Incidentally, although this did not come up in the opinion letter, paralegals might meet the executive exemption if they are supervisors (supervising at least two employees) and spend the majority of their time doing this.

Conclusion

If you just realized your 60-hours-a-week paralegal is non-exempt, you’re probably wondering what to do. Employers in similar situations have used several approaches, but suffice it to say, this must be handled delicately.

In close cases, minor changes in duties may satisfy an exemption. However it is likely the paralegal will need to be reclassified. In that case, how you communicate the change can help minimize exposure.

Also remember not to create a “smoking gun” by documenting possible violations. Consider working with employment counsel to develop the best strategy for your specific circumstances. •

Robert G. Brody is the founder of Brody and Associates LLC, and Sami Asaad is an associate with the Firm. Brody and Associates represents management in employment and labor law matters and has offices in Westport and New York City.

"Beware the Hidden Costs of Bad Formatting"

Pretty poor reaction to need for increased training given that documents produced by law firms are so important!

"When talking to law firms about training, I often hear the following statements: 'It's so easy, you don't need training'; 'If you can't learn it in an hour, it's not worth knowing'; and my favorite, 'We're getting documents out the door.'

"Law firms often use arguments like those mentioned above to skimp on training. However, there can be real bottom-line consequences to this kind of thinking. Training your users on proper document formatting can mean the difference between a document that will cost your firm unnecessary time, money and productivity and one that won't. For example, you can compare two visually identical 30-page Word documents side by side. They may look exactly the same, but one could require 2 1/2 minutes to make three basic changes while the other takes more than 60 minutes. What makes the difference? Formatting!

"Document formatting is not a sexy topic, but if you run the dollars on how much money it saves, you quickly realize how important a consideration it really is. A document that is poorly formatted [PDF] behind the scenes is full of tabs, hard returns and manual numbering. With these documents, every time text is added or deleted, someone must go into the text and remove tabs, adjust hard returns and page breaks and manually renumber the paragraphs. All formatting is direct formatting so that if the point size for 50 paragraphs needs to be changed, all 50 paragraphs must be formatted."

Good examples of formatting problems are included in the complete article.

Author Roberta Gelb, a member of the Law Technology News Editorial Advisory Board, is also president of Chelsea Office Systems Inc., based in New York.


"Is Software the Key to Streamlining HR?"

This Legal Technology article describes the HR challenges in law firms & how various software options makes them manageable. [2nd paragraph links from original text]:

"Managing human resources is one of the most labor-intensive processes at a law firm. Keeping track of payroll, benefits, leave time and lots of other information is time-consuming and costly. Fortunately, there is plenty of software -- both commercial and homegrown --that can help firms automate many HR functions. Firms that are using these tools are seeing benefits, such as cost savings and increased efficiency.

BINGHAM MCCUTCHEN

"Bingham McCutchen, with nine U.S. offices and three overseas, has 950 attorneys and 1,150 executives and support staff. In the mid-1990s, the firm began using an HR tracking and analysis system called HRVantage, from Spectrum Human Resource Systems Corp.. The system helps the firm to track and report on HR-related tasks including new-hire processing, employee status, benefits enrollments, employee history and performance/salary reviews."


"Make the right hire: use an employment agency"

Helpful, if somewhat obvious, restatement of advice to law firms from Massachusetts Lawyers Weekly:

"We’ve emphasized before that even the smallest practices benefit from hiring the right administrative help to free up attorney time for practicing law and winning new clients.

"However, the hiring process in itself is complex and time consuming. That’s why it makes sense for most small and mid-sized law firms to use employment agencies in filling staff positions.

"Lawyers consider themselves great judges of character, but the hiring process requires far more specialized resources to be done effectively. Employment agencies have the knowledge and skills at interviewing, psychological evaluation and employment discrimination law to handle the recruiting, evaluation and hiring process effectively.

"They also have the time and investigative skills to verify a potential hire’s credentials and experience — a vital task that’s increasingly difficult to do because of privacy laws."

Author Edward Poll, J.D., M.B.A., CMC, is a speaker, author and board-approved coach to the legal profession.


"MoFo IT Gets Its Green On"

Kudos to Morrison & Foerster for adopting a strong 'green' culture! Find four good ideas in this Legal Technology article:

"With 1,070 lawyers in 18 offices throughout the world, Morrison & Foerster has a culture that promotes excellence, diversity, teamwork and social responsibility. Last year, we were selected as one of Fortune magazine's '2006 Best Companies to Work For,' and the firm has won numerous other accolades that reflect our commitment to these goals.

"Among these priorities is our commitment to create a work environment that is healthy and environmentally responsible. Our IT department has initiated a number of programs designed not only to help to minimize our impact on the environment, but also generate real savings. Here are a few of our recent programs:

1. CRT to LCD

"Our first project was designed to save desktop space, as well as eyes and power. Over the last four years, we have significantly reduced our power consumption in our offices and data centers by replacing all cathode ray tube monitors with liquid crystal display units. LCD monitors consume less power and have a longer life than CRT monitors. As a result, we have saved roughly 619 megawatts of power per year -- enough to power 58 average American homes for one full year."

Author Anthony Hoke is global technology purchasing/asset manager at Morrison & Foerster, based in Los Angeles.


"Document Imaging: Keeping It Simple"

Author Tony DeLoera, the chief technology officer at Ice Miller, describes how to manage document imaging the right way:

"Simplicity. This was the guiding principle in our selection of a document-imaging system. In early 2005, Indianapolis-based Ice Miller was overrun with paper. With 225 attorneys, and three branch offices in Chicago, Washington, D.C., and Naperville, Ill., we decided to leverage the decision to change our office copiers as an opportunity to gain more control over our workflow.

"We needed a document-imaging system that our attorneys and other professionals could use with little or no training. We wanted our users to be able to walk up to a copier and scan documents directly to a PC desktop or to software, such as Microsoft's Word and Outlook, or Hummingbird Enterprise. We wanted a simple system so our users could copy without calling the IT help desk.

"But simplicity didn't mean we wanted a simplistic application. We did not want to scan documents only to have them scatter, unindexed, inside our IT network. All that would do is transfer our document handling difficulties from unstructured paper to unstructured electronic data. Rather, we wanted a program that integrated with our existing software (Hummingbird Enterprise, Captaris Inc.'s RightFax, Word and Outlook) and would improve our office efficiencies."

The full article is a must-read for those interested in expanding their roles into firm management...


"Do You Have an Office Supply Fetish?"

Isn't it fun to shop for office supplies? Well, here's what Web Worker Daily found [links from original post]:

"Stella Commute does:

Now, I can go to Staples any time I want and because I have a reasonable amount of disposable income, I can select the office supplies that make my heart sing. Color coded folders and matching labels? Done! Post-Its in various configurations? Check! Sharpies, Sharpies, Sharpies! And my latest addition: plastic-coated paper clips that make every grouping of papers hum with vibrant togetherness. Yes!

"I stopped at OfficeMax today to have new business cards printed and found myself drawn magnetically towards the pen section. I cannot resist trying new pens!"


"Manager Minute": How to Manage a Law Firm

The legal administrator profiled in this article says his "job is to bridge communications between employees":

"...[A]s legal administrator for the Fort Lauderdale bankruptcy law firm of Rice Pugatch Robinson & Schiller PA, Jimmy Allen also 'wears a lot of hats in this job,' he said. He is responsible for overseeing payroll, benefits, scheduling, vendors and other day-to-day duties for the firm, while serving as liaison between staff, associates and lawyers.

"Allen joined Rice Pugatch in 2002 as a paralegal and credits his training in the Air Force for his focus and organizational skills. 'It can be a very high-stress job,' said Allen, 40, who earned a law degree from St. Thomas University in Miami. One effective way to handle all the firm's activities, he said, is to be an active listener and make sure the right person is in the right job.

[snip]

"Management lesson learned: Nothing runs on autopilot. No matter how big or how small the project, follow up without micromanaging."


"Surviving the Holiday Office Party"

Office parties can be fun, but watch yourself, it's still work!

"Yes, it's that time of year again; 'tis the season for the holiday office party. Holiday parties are typically held to thank employees for all their hard work and to try to motivate them to continue their efforts. Parties are also viewed as great opportunities for coworkers to mingle without pressure and develop camaraderie. If you dislike your company and the people you work with so much that you don't want to spend a few social hours with them, you are probably at the wrong job!

"You can take advantage of the office party as an opportunity to have some fun and advance your career—or inadvertently crush any chance you had of making partner. Believe it or not, your firm's holiday party is one of the most important social events you will attend. That's because it is a rare occasion on which the people you work with will be able to see you as an actual person. And while you might not be one of them, there are people who look forward to hobnobbing with their coworkers on a social level.

"The holiday office party is a great time to cut loose—just not too loose. Following certain fundamental rules of etiquette can make you a welcome guest at any office gathering."


Six Rules on Gift-Giving at Work

Just how often does either party to gift exchanges like the outcome? Not to mention the dicey office politics:

"As the holidays approach, the season of potential gift-giving at the office can range from pleasantly surprising to painfully awkward.

"Navigating the social and professional landscape can be difficult, but there are ways to avoid alienating colleagues with embarrassment or hurt feelings, career experts say. Co-workers who are also friends can exchange gifts off site, for example, and those who want to get the boss a present can go in as a group to be as inclusive as possible.

"The first order of business for those looking to play Santa is to check the company handbook or consult its human-resources manager to see if there's a policy on office gift-giving.

"Many employers are erring on the side of caution these days in anything that could be construed as fodder for a lawsuit, and some may extend limits on gifts to and from business associates to the interoffice realm as well, said Deborah Brown-Volkman, a career coach in East Moriches, N.Y., and author of the forthcoming book 'How to Feel Great at Work Everyday.'

[snip]

"Here are six suggestions for gift-giving at work without putting people on the spot or breaking team camaraderie:

  1. Keep it voluntary.
  2. Weigh a gift to the boss carefully, since others may perceive it as inappropriate or an attempt to curry favor.
  3. Be mindful of income differences and financial pressures when soliciting group gifts.
  4. Don't present a gift to someone you don't know well just because it's the holiday season.
  5. Gifts among peers are best exchanged off site and after hours to avoid anyone feeling excluded.
  6. What if you receive an unforeseen gift?"

I have mixed feelings about giving gifts to co-workers. And getting them (but I do love book gifts!). How do you handle this gift-giving season?