Nothing good can come of this; Update!

Got an email yesterday from The Posse List (it's a free listserve that posts jobs for contract attorneys and occasional news about the industry -- I've mentioned it a lot before but will not link to those posts. Suffice to say every contract attorney subscribes) about a legal case that absolutely fucks contract attorneys with respect to overtime. Frankly, the whole thing makes me want to track down the plaintiff and beat his ass. Dude may have single-handedly killed time-and-a-half for overtime in document review work.  While the decision is by a federal district court and is binding only in that district, it reinforces the trend that is seeing many firms already paying straight time for work over 40 hours -- no overtime bump. Firms and agencies might have been waiting to see if temps would settle for being fucked out of overtime in exchange for still working, but this dickwad gave them legal precedence:

In a case that helps clarify what discovery-related activities constitute the practice of law, a federal judge in Manhattan has told a group of contract attorneys performing document review for a major law firm they are not entitled to overtime pay because they were engaged in legal work.
Summoning professional and ethical codes of North Carolina, where the attorneys worked, Judge Richard Sullivan determined that document review rises to the level of legal practice — irrespective of its complexity or the legal credentials of those performing it. The application of legal judgment, Judge Sullivan said, is not a prerequisite for an activity to be deemed “practice of law.”
The September 16 ruling comes in a collective action brought by David Lola against Skadden, Arps, Slate, Meagher and Flom, and Tower Legal Staffing under the Fair Labor Standards Act. In dismissing the suit, Judge Sullivan could precipitate the failure of similar challenges by other groups of contract attorneys suing for overtime. Document review, the menial form that requires only tagging materials for responsiveness if they include certain predetermined keywords, is not legal work, they contend.

This fuckwad made the stupidest argument you can make: that law firms hire people with law degrees to make decisions that a fucking chimp could make:

Lola sued Skadden and Tower Legal Staffing in July 2013 arising from work he performed for Tower over the course of 15 months as a contract attorney in North Carolina. Although Lola is a licensed attorney in California, he is not licensed to practice in North Carolina or the Northern District of Ohio, where litigation involving a Skadden client necessitated the review work.

Lola performed elementary review that consisted entirely of identifying search terms appearing in documents, marking those documents for responsiveness, and, occasionally, redacting materials according to protocols Tower and Skadden provided. He earned $25 per hour working 45 to 55-hour weeks. His fellow contract attorneys received similar wages, with no hike in pay for hours worked in excess of 40 per week.

Document review is not rocket science. It isn't even high school biology. It's pretty fucking easy. However, it still involves, at least theoretically, legal judgement. Sure, most temps don't actually exercise legal judgement -- and I think we know now where Mr. Lola falls on that scale -- but no one should ever be doing this work under the standard that Lola seems to have applied -- "I see a search term, the document is reponsive." The seach terms are broad and drag in many documents that are junk. The job actually requires that you understand what the document requests -- whether they are issued by the government, such as in the case I am working on, or by a private party in litigation, such as seems to have been the case for Mr. Lola -- are looking for and mark the documents accordingly. Anyone who argues that this requires no legal judgment is 1) a fool who doesn't understand what legal judgment involves and b) a fool who wants his job to be given to a high-school dropout because no legal judgment is involved and therefore the firms don't need to spend extra money hiring somebody with a law degree.

I've posted about a similar suit before, but this is the first I've heard of one of these suits reaching a decision. Naturally, this decision can be appealed, but I have to believe the plaintiff isn't rich and might not be able to convince his lawyers to continue this dumbass quest. [Update: The same lawyers are involved in both cases, so they might have an agenda that encourages them to pursue this further, regardless of the plaintiff's financial status.] Also, I would sure hate to get an appellate court decision on this that would be binding in even more states. Right now, the decision might only be binding in North Carolina (where the work was being done) and maybe New York (where the suit was filed). Don't want to see that expanded by a lost appeal. I would like to assume that this guy is a lawyer and thus smart enough to realize when he is getting his ass kicked in court, but I have no evidence to support that theory. So there's that.

So what we have here is a guy who never read the Federal Labor Standards Act, which makes it pretty clear that folks who do jobs that require professional judgment are exempt from overtime standards. Attorneys fall into that category. To argue that temp attorneys aren't exempt from overtime laws is to argue that firms don't have to hire temp attorneys, they can hire anybody. Stupid argument, unless you are so tired of Temp Town that you are willing to kill it completely to get out. Wouldn't it be better to just get a job somewhere else? Really.

So is this decision all bad? No. It might make it easier to get out of Temp Town, but not because Big Law will look at temps resumes and say, "Hey, this guy has been doing document review as a temp. That's the practice of law -- let's hire him!" It could be helpful for a temp who wants to move away from here, though. Say you have a temp who started temp work right out of law school, does that for five years here then decides to go back to whereever.  Most state bars will allow a lawyer to waive into the bar without taking that state's bar exam by paying a fee if the lawyer has been practicing law for a certain number of years (depending on the state). Now, at least, a temp can point to a court decision that says, yeah, this guy has been pracdticing law.

Mostly, though, this is probably bad for temps, at least with respect to overtime pay. I suspect more and more firms will offer straight time -- no time-and-a-half -- for projects that call for more than 40 hours per week. Maybe that will result in more projects that offer more than 40 hours per week -- a big problem in recent years has been that so many projects are capped at 40 hours, which is no way to make a living. Maybe it will result in a higher base rate. I wouldn't bet on either of those outcomes, though. I suspect that most projects will still be capped at 40 hours, and those that aren't will be much less lucrative.