Legal Briefings: Legal Counsel on Overtime

By Mark Kobata

Sep. 30, 2015

Licensed professionals such as attorneys normally are treated as exempt under the Fair Labor Standards Act.

The plaintiff in Lola v. Skadden, Arps, Slate, Meagher & Flom challenged that notion. The plaintiff, a lawyer licensed in California but residing and working in North Carolina, worked for Skadden as a contract attorney performing document reviews. As a contract attorney, the plaintiff regularly worked more than 40 hours per week without receiving any premium pay for overtime. The plaintiff sued, alleging that Skadden determined which documents to review, how that review should take place, what to look for and other aspects of his performance. Based on these factors, he could not legally be said to have been “practicing law” in a manner sufficient to bring him within the FLSA exemption. Skadden moved to dismiss the complaint contending that, as a licensed attorney, the plaintiff was exempt.

The District Court granted the motion to dismiss. The U.S. Court of Appeal for the 2nd Circuit reversed the dismissaland remanded the matter for further proceedings. The 2nd Circuit found the allegations that his work was so circumscribed that it was “devoid of legal judgment” was sufficient to allow his lawsuit to proceed. It also found that, under North Carolina law, merely being licensed to practice law did not make the plaintiff an exempt professional. Lola v. Skadden, Arps, Slate, Meagher & Flom, et al. United States Court of Appeals for the 2nd Circuit Docket No. Docket No. 14-3845-cv (July 23, 2015).

IMPACT: Care must be taken to ensure that employees not only qualify as exempt professionals based on their licensing and skills, but also based on the work they are actually asked to perform.

Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. To comment, email

Mark Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago.

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