Last Friday, I had the honor and privilege of presenting at the Philadelphia Association of Paralegals’ Education Conference. The class was essentially a primer on the basics of employment law, during which I emphasized both the types of claims on which paralegals may assist clients, and the employment-law issues that the audience may encounter for themselvesat work.
We explored discrimination, disability accommodations, family and medical leave. And then we got to the Fair Labor Standards Act.
So, I asked the audience, which was comprised of most generalists, how many often worked more than 40 hours per workweek? (Many hands went up).
Then, I asked how many were paid overtime for working over 40 hours per workweek. (Some hands went up).
And then I made this face.
The others were like.
The FLSA requires that employees receive minimum wage of not less than $7.25 per hour and overtime pay at a rate of at least one and one-half times the regular rate of pay for all hours over 40 worked in a given workweek. Now, there are certain exemptions that may apply. But, for a paralegal, there are only two possible exemptions: the administrative exemption and the learned professional exemption.
To qualify for either exemption, the employee must be paid on a salary or fee basis of at least $455 per week. So, if the paralegal is employed hourly, the paralegal must receive minimum wage and overtime for all hours worked over 40 in a workweek.
Most paralegals are non-exempt.
But, let’s assume that the paralegal is paid a salary of at least $455 per week, to qualify for the administrative exemption, the employee must primarily perform office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers. Also, the employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. Alternatively, to qualify for the learned professional exemption, the employee’s primary duty must be the performance of work requiring advanced knowledge. And that advanced knowledge must be: (a) in a field of science or learning; and (b) customarily acquired by a prolonged course of specialized intellectual instruction.
Back in late 2005, the Department of Labor (here) specifically addressed whether the administrative or learned professional exemptions could apply to exempt paralegals from the overtime requirements of the FLSA. The DOL concluded that the administrative exemption did not apply because paralegals essentially carry out tasks assigned by lawyers. That is, they do not exercise independent discretion on matters of significance. Plus, their work does not relate to assisting with the running or servicing of their employer (or their employer’s customers).
The DOL reached a similar conclusion on the learned professional exemption, because, with limited exception, most paralegals do not take a prolonged course of specialized intellectual instruction. Also, most don’t perform work requiring advanced knowledge.
That means overtime.
Employers need to be proactive on wage and hour issues.
As I’ve said before, with impending changes to the regulations, 2016 is going to be the year of the FLSA. But, right now, the FLSA is rife with pitfalls for employers. Do you avoid salaried employees overtime just because they’re salaried? Do your job descriptions need updating? Is your employee handbook compliant? Are your independent contractors really employees?
If you have never conducted a wage and hour audit, or if it has been a while since you have done so, now is the time to find a lawyer to help you analyze your pay practices to ensure compliance.
Image Credit: 401(K) 2012 on Flickr