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.)