My view: Robots don’t get overtime pay, but a lawyer alleging he does the work of a robot states a claim for overtime. Just allege you provide services that a machine could have provided, and you get to go to trial. [Opinion: Lola v. Skadden, Arps (2nd Cir 07/23/2015), reversing Lola v. Skadden, Arps (SD NY 09/16/2014).]
David Lola is a lawyer who got hired by a legal staffing company to perform services for the Skadden Arps law firm. Lola did his work in North Carolina – reviewing documents relating to litigation pending in federal court in the Northern District of Ohio. Lola is a licensed lawyer in California, but is not admitted to practice law in either North Carolina or the Northern District of Ohio.
Lola sued both the staffing company and the law firm claiming entitlement to overtime pay. The defendants argued that Lola was exempt from overtime due to his status as a professional employee – “Any employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof,” according to DOL regs.
Lola argued that his work was not the practice of law because it was “mechanical” and “did not involve the use of any legal judgment or discretion.”
The court said it needed to use state law standards in interpreting the federal “practice of law” rule.
And which state? The state where the work was performed (North Carolina). Not the state where the litigation was pending (Ohio), not the state where the law firm and staffing agency had their principal place of business (New York), and not where Lola had his law license (California).
According to a North Carolina ethics opinion, document review is the practice of law. But the 2nd Circuit pointed out that “inherent in the definition of ‘practice of law’ in North Carolina is the exercise of at least a modicum of independent legal judgment.” The court interpreted Lola’s complaint as alleging that he “exercised no legal judgment whatsoever,” and “provided services that a machine could have provided.” That’s enough to survive a motion to dismiss for failure to state a claim.
Obviously the court does not understand machines. Have they not heard of computers that can beat chess champions? Or experiments in which computers replace judges?