Improving attorney quality of life one complex litigation project at a time

Virtual Paralegalism

The Blog Formerly Known As Practical Paralegalism

Former Paralegal Sues Texas Firm for Unpaid Overtime

Former Paralegal Sues Texas Firm for Unpaid Overtime

Overtime payment can be a sore subject for paralegals, especially those that are not compensated for hours worked in excess of 40 per week. Sometimes paralegals just complain about unpaid overtime, and either put up with the situation, or move on to another firm – and sometimes they litigate the situation, like Sherri Davis, who filed a lawsuit in U.S. District Court for the Southern District of Texas last week against her former employer, a Houston firm, Mostyn Law Firm P.C.

According to the complaint filed by Davis on behalf of herself and “on behalf of all others similarly situated,” i.e. other former and current paralegals at the firm, she was allegedly a nonexempt employee, and “was not compensated at the FLSA mandated time-and-a-half rate for hours worked in excess of forty per week.” In addition to the unpaid overtime, Davis seeks liquidated damages in an amount equal to the alleged unpaid wages, and attorney fees and costs. The complaint does not state the specific amount of overtime pay claimed.

Per the Tex Parte Blog that originally broke the story, the defendant alleges that Davis was an exempt supervisory employee not entitled to overtime compensation, and that the firm’s other paralegals are eligible for overtime pay.


A paralegal’s entitlement to overtime is determined by whether she is classified as an exempt or nonexempt employee, but most paralegals, even if they are salaried, fall in the nonexempt category. The American Bar Association Standing Committee on Paralegals addresses this issue specifically in “Do I have to pay my paralegal for overtime?” and provides a succinct explanation:

Paralegals as a group may not be classified as exempt, according to the U.S. Department of Labor, because they are not required to have advanced professional knowledge acquired through prolonged, specialized instruction and study, and are not generally involved in the performance of duties that require the exercise of discretion and independent judgment.

(I know. We’re damned if we do and damned if we don’t. Some of us are pretty darned educated, and sure we exercise discretion and independent judgment all the time within the ethical bounds of the law, but we want to be paid overtime, too.)

In January 2009, Law.com reported that failure to receive overtime compensation is one of the top employment law issues for paralegals, along with sexual harassment, violations of the FMLA, and whistle-blowing, noting that “law firms have tried repeatedly to count paralegals as ‘white-collar’ workers, exempt from overtime.”

I’m not a lawyer, and I don’t even want to play one on TV, but as a long-time employee of a law firm that specializes in employment law, including wage and hour cases, I would urge any paralegal not receiving overtime pay earned to consult a lawyer that specializes in employment law as soon as possible. Statutes of limitations in many kinds of employment cases are very short, and time could be running out to recover earlier periods of unpaid compensation. Find out what your legal rights are, and then make an informed decision about what to do next.

Have any of my readers dealt with unpaid overtime? What did you do? (Anonymous commenting is fine as long as it doesn’t look spammy, peeps.)

Sources: Tex Parte Blog; ABA Standing Committee on Paralegals; Law.com

4 Responses to Former Paralegal Sues Texas Firm for Unpaid Overtime

  1. Yes, I have. My feeling is, however, when you interview for a job with a company, you should be clear at the outset (before you take the job) whether you will be paid overtime or not. If you want to be paid overtime and yet, the decision about your entitlement to it is left inconclusive and you, nevertheless, accept that paralegal job, then you later discover that they’ve decided you won’t be getting overtime, the onus was on you.

    I am a firm believer that EVERYONE should be compensated for the hours that they work, and I believe in bonuses and such; however, it is your responsibility to be clear on what it is you want and what you will and will not accept. You can’t later get upset, because what some one said the equivalent of “maybe” and then “maybe” turns out to be “no,” irrespective of your reasons for having to take that job. As much as I don't want to say this, that’s not the firm’s fault.

    Having said that, I also think that firms can do a lot better at monetarily showing their appreciation for paralegals who, so often, do the bulk of the work and cover the attorneys’ asses so much of the time.

    Many paralegals damn sure deserve overtime, but, again, if it’s not contractual or part of some already established, explicit arrangement, we’re not exactly “entitled” to it.

  2. I'm going to agree with Stacey. Overtime compensation should be discussed at the time of the interview or at the very latest, right after you have worked overtime – were not compensated for it on your paycheck and than realized you wouldn't be paid for overtime.

    If she disagreed with her exempt status, than she should have discussed that with her HR department or supervisor. If she didn't know what her employer considered her, she should have.

    At my current firm, I am salaried. We don't punch in and out, if the firm needs me, I'm here and the firm is also great about letting me take personal time when needed. It all kind-of evens itself out.

  3. One of my early paralegal jobs was for a firm that did not pay overtime. They were upfront about it and promised I wouldn't work long hours and would be compensated with bonuses. They were wrong. After two years of busting my butt (and also building some much needed skills and experience) I finally quit for a job that did pay overtime. I never thought to sue for the overtime. I figured the fact that I left the firm weeks before one of my cases was scheduled to go to trial was revenge enough.

Contact Info:

Lynne J. DeVenny, N.C. State Bar Certified Paralegal

Owner & Virtual Paralegal, DeVenny Paralegal Services

Email: lynne.devenny[at]gmail.com

Telephone: 336-582-0003

Inquiries are welcome, with free quotes available.

Meet Lynne:

Lynne DeVenny is a North Carolina State Bar Certified Paralegal with over 27 years of experience working on complex litigation cases, including medical malpractice, personal injury, workers’ compensation, and Social Security disability.

Disclosure: I am not a lawyer and cannot provide legal representation or legal advice.

Website design by T.Marie Hilton-Girly Girl Geek Designs