Overtime Or No Overtime Or Some Kind Of Overtime?

Fellow contract attorneys and document reviewers, do you ever get lost in discussions about your overtime structure? If, indeed, you are lucky to get paid such. No worries, our favourite guest writer Andrea will shed some light on this matter. Enjoy! 

As document reviewers, we are as confused about this matter as agencies and law firms are. Generally speaking it depends on your jurisdiction and the classification of the job you do rather than your education. Several suits have been filed to clarify this question so do not look to me for a final answer on this one. What I can however tell you is how OT is handled in my experience.

Classic Overtime By common definition this is any hour worked above what are considered regular hours, and is paid at a higher rate. I have only experienced the classic time and a half rule or 150% based on the basic rate paid for the first 40 hours or time and a half. Holidays or weekend work does not add any extra bonus pay. My most recent foreign language reviews were still of this kind. CAUTION: Make sure you find out when the week starts and when it ends. The classic work week starts Monday and ends Sunday. This explains why many short reviews start mid week. EX: a one week review with heavy OT is started on a Friday, goes through the weekend and ends some time the following week. There may be very little to no OT pay as the hours were spread out over two weeks – this just happened to a friend of mine in London. None of the reviewers saw this one coming and one actually wanted clarification from the supervisor. My friend now has an anecdote to tell about a fellow reviewer who was escorted off the premises by security.

Flat-Rate Historically speaking (looking back a mere few years) a flat rate was somewhere between the normal hour rate and the OT rate. Nowadays it just means the regular rate without a penny extra for OT. New York is notorious for this practice but other jurisdictions have followed suit. My last English reviews all fell into this category and this is what more and more agencies offer (perhaps only until some legal decision is finally rendered).

Staff Attorney What does this have to do with overtime on document review projects you may wonder. This is a new business model where reviewers are hired by the law firm at a fixed pro-rated salary. For example: $100.000/year apportioned to the time you actually work there. As an employee you have no right to seek OT pay. So whether you work 8 hour days and 40 hour weeks or 10 hour days and 70 hour weeks, you will earn the same amount of money. The perks are…well there really are none except that you can pretend to have been employed by a law firm who will not deny your existence and the fact that you have worked for them as some other firms do. I was not surprised by what this meant when I recently interviewed for such a position as my boyfriend is in management and has explained this concept to me on numerous occasions (as in why he works weekends and cannot get compensated for it). However, many fellow reviewers used to getting paid for the time they work, at whatever rate but at least paid, asked me to explain this concept twice to them as they were dumbfounded and unable to make sense of it. Actually that position was going to start off in overtime mode already as there really is no incentive for the firm to cut down on overtime and to add new and enough employees to do the job in regular time in order to contain discovery costs. There was also no way for an “employee” to choose to do overtime or not, to work late nights and weekends or not. So far I have seen this model for foreign language reviews only but we all know these models are not patented and will pop up elsewhere. Do the numbers (yes, lawyers are dismal at math – force yourself – it is your money). My $48/h fell by almost $6 just by expecting a 9h work day rather than 8h. A friend of mine ran the numbers for me with the customary OT we usually see as the project invariably runs into trouble and at some point I found myself in the mid-upper-20’s.

So be smart about OT – it makes a huge difference as we all know. Check out the previous posts by Andrea, where she shared her experience and thoughts on the industry’s standards for contract attorneys including useful tips on how to deal with language tests, what to consider as a European contract attorney wanting to work in the USA, as well as to how to be über-prepared and be a review-platform master.

You can reach Andrea on her LinkedIn profile and via email at: AKaluzny@aol.com.

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3 thoughts on “Overtime Or No Overtime Or Some Kind Of Overtime?

  1. Great post. Very curious to see what happens when a wage/hour case finally goes to verdict and is upheld on appeal. My take has always been that the kind of work performed by contract attorneys is akin to skilled manufacturing, and the same OT rules should apply.

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  2. Yes Matt, true. I believe California has ruled this way (not your education but the type of work you perform is what decides on whether you can get OT or not – and yes, our type of work qualified) but other states are still outstanding. I, too, am looking forward to the rulings. From what I can tell the staff position I was writing about has now gone to a reguluar document review job (saw it advertised yesterday). I guess it was hard to staff with all they required. Excerpt from article on Poselist:”Contract lawyer sues NYC law firm for not paying overtime – Preston Gates & Ellis case (now K&L Gates LLP and yes — that’s Bill Gates father) where the firm agreed to settle a lawsuit alleging violations of the wage and hour laws. The suit was filed on behalf of over 300 lawyers who were employed by the firm to review electronic documents that were the subject of discovery requests in lawsuits. The gist of the case was that the law firm treated the lawyers as professionals who were exempt from the overtime laws as a result of their professional status, but the lawyers claimed that their work did not require them to use their professional skills, thereby making them nonexempt hourly workers. The settlement reportedly involved a payout of $700,000. The firm denied violating the law and told the media at the time that it would be easier and more cost-effective to settle the case than to fight it.”

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  3. Pingback: Not Quite Legal | Still Hustling…

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