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News: How to Win a Lawsuit for Overtime Pay

A few days ago, another interesting ruling regarding overtime pay addressing the question of who can be considered an exempt professional was published.

Adina Kadden,a law school graduate who had been hired as a $75,000-a-year litigation graphics consultant, brought a lawsuit against her former employer Visualex (a company that provides graphics and trial support services to law firms in connection with large litigations) pursuant to the Fair Labor Standards Act (“FLSA”) to recover unpaid over time.

New York Southern District Judge Shira Scheindlin held that Kadden was entitled to overtime pay because the work that was assigned to her did not require "learned professional" skills.

—— A tricky case ——

Kadden’s academic qualifications, her “Litigation Graphics Consultant” job title, and her annual salary of $75,000 made her a less-than-obvious candidate to claim the protections afforded by the FLSA regarding maximum hours requirements.

Additionally, the Supreme Court had stated in a recent opinion that individuals earning “more than $70,000 per year . . . are hardly the kind of employees that the FLSA was intended to protect.”Christopher, et al. v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2173 (2012).

However, the binding regulations also make it clear that neither a title nor a relatively high salary is dispositive of the exemption determination – what matters is what a particular employee’s primary duties are.

—— The creative professional exemption ——

No evidence suggested that Kadden’s job required her to originate stories from scratch, or produce complex analyses of or transform the data that she was given. Thus, according to this ruling, none of Kadden’s duties fall within the creative professional exemption.

—— The learned professional exemption ——

To qualify for the learned professional exemption, the educational requirements must not only be advanced, but also specialized. “Advanced knowledge from a general academic education and from [experience]” rather than from “a prolonged course of specialized intellectual instruction” does not qualify for the exemption.”

—— The administrative work exemption ——

Kadden’s time was largely spent helping to generate presentations, which involved editing the presentations, creation of graphics, and some supervision of the studio’s role creating the presentations.

Kadden’s time was billed to clients and her work content was the service for which her employer had been hired by its clients. This was not “employment activity ancillary to [the] employer’s principal production activity,” such that it would qualify as administrative work.

To the extent that Kadden supervised other employees, she did so in conjunction with executing that work herself in a non-managerial capacity – such as editing and, in limited circumstances, creating new graphics herself. “[W]ork does not become management simply because the [employee] directs the work of other employees while performing such work.”

The work Kadden did for VisuaLex’s client law firms also related to the “very product or service that [the clients] offer[ed] to the public,” much like the trial preparation work that an in-house paralegal would perform.

For the foregoing reasons, Kadden was not exempt from the FLSA's overtime requirements,

—— Broad ramifications ——

According to VisuaLex's attorney, the ruling has broad ramifications.

"It is wide-sweeping in the sense that it goes further than this industry or this employer and I think it essentially enables any employee, no matter how advanced their degree, no matter how professional they are, no matter how they represent themselves to the world in what they do, to dummy down their job."

So, if you think you qualify for overtime pay and do not receive any, you can most likely try to negotiate with more confidence with your employer, as it seems that the law is on your side!