The new Dept. of Labor regulations regarding eligibility for exemption from overtime pay will become effective on Aug. 23rd, and they include a rather substantial revamping of the definition of who is considered an exempt professional. I’m a paralegal, and the management of my firm has been in quite a tizzy trying to figure out whether they need to revamp their overtime policies to comply with the new regulations, and if so, how. We’re having a big meeting about it tomorrow morning, and it could get innnnteresting, to say the least.
(Others among you who are currently classified as exempt at your current jobs may find this interesting, too: the whole fact sheet about the new regs is online at http://www.dol.gov/esa/regs/compliance/whd/fairpay/main.htm)
Currently paralegals at my firm are considered exempt, and we put in significant amounts of unpaid overtime. However, practically all the other mainstream, reputable firms in my firm’s legal specialty either pay overtime to paralegals, or paralegals actually work something resembling 9-5.
The crux of the issue, from my brief and not terribly well-informed reading of the new regulations, has to do with whether paralegals can legitimately be classified as “learned professionals.” The definition, from the Dept. of Labor website:
“Learned Professional Exemption
To qualify for the learned professional employee exemption, all of the following tests must be met:
§ The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
§ The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
§ The advanced knowledge must be in a field of science or learning; and
§ The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. “
Now we do make more than $455 a week, but the remaining prongs of the test are awfully fuzzy.
-On one hand, as paralegals, we are not allowed to operate without the close oversight of an attorney, and all our work must be reviewed and approved by an attorney before it goes anywhere. We are not allowed to make legal judgments independently. However, we do keep the cases moving and balance workloads, that sort of thing. A couple of very senior paralegals are, in effect, managing client accounts, and could conceivably fall under a different overtime exemption (the administrative/managerial one).
-On the other hand, I’d like to think the work I do requires the use of a brain, and possibly even some intellect or judgment here and there.
-The paralegal field is one which is in the process of professionalizing; there are paralegals with no post-secondary education who have learned on the job, there are ones who are putting themselves through law school, there are ones with unrelated or semi-related degrees (like yours truly; yay liberal arts!), and there are ones with what is becoming the standard, which is a bachelor’s degree in paralegal studies or a bachelor’s in something else plus a post-bachelor’s paralegal certificate. Occasionally you’ll find someone with a foreign law degree who hasn’t managed to be admitted to the bar in the U.S. In my office, we have everything ranging from someone with no degree but lots of experience and who is really sharp, to someone with a Ph.D. in linguistics. So there is no single educational path that leads to my position, or to many other paralegal positions at other firms or within other companies.
I’d tend to think we should not be classified as exempt, but I suspect management would disagree. What do you think, and what is your reasoning? Case law citations would be greatly appreciated.