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Should You Pay Contract Attorneys Overtime?

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By Robyn Hagan Cain on March 05, 2013 6:01 AM

When your small firm is on its way to the big time, you might find yourself in need of an extra pair of hands or eyes. One way to get the short-term help you need is to hire a contract attorney.

But how should you pay a contract attorney? As an exempt employee or a non-exempt employee?

An employment lawsuit filed this week in New York suggests that it could be complicated.

William Henig worked as a contract attorney for Quinn Emanuel in New York. According to his complaint, Henig was hired and paid through Providus, a company that provides attorneys and paralegals on a contract and direct-hire basis to law firms and corporate law departments in New York. (Brief thanks, Above the Law.)

During his six-week tenure with the firm, Henig passed his days doing the standard doc review grunt work, viewing "hundreds of documents each day for the purpose of sorting the documents into certain categories" as determined by Quinn Emanuel. Henig claims that he was a non-exempt employee "given the extremely routine nature" of his job's duties.

As a non-exempt employee, Henig would be entitled to overtime pay at 1.5 times his regular hourly wage under the Fair Labor Standards Act. Since he alleges that he was required to work 57 to 60 hours per week, we're talking about up to 120 hours of overtime pay for his time at the firm.

But Henig may have a hard time making his case.

For most professions, an individual is an exempt employee if he:

  1. Is paid at least $23,600 per year (or $455 per week);
  2. Is paid on a salary basis; and
  3. Performs exempt job duties.

Lawyers are considered exempt professional employees since they generally perform work requiring advanced education or training. Exempt jobs tend to be intellectual jobs requiring specialized education and involving the use of discretion and judgment.

And that's why Henig details the "routine" nature of his job in the complaint. He's essentially arguing that he worked as a glorified paper pusher, not an attorney. If he wins, it could change the way that contract attorneys are compensated.

What do you think? Are contract attorneys exempt or non-exempt? Do you pay your contractors overtime? Tell us your firm's policy on Facebook or Google+.

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