Wednesday, July 07, 2010

Labaton Sucharow Sweatshop Sued For Failing To Pay Overtime

"A lawyer is suing his former New York-based employer, alleging that the law firm violated federal labor laws by not paying time-and-a-half for overtime.

In a complaint filed Wednesday in federal court in Manhattan, the lawyer, Moshe Koplowitz, said that the firm he did temporary work for, Labaton Sucharow, did not pay him at a higher rate when he worked more than 40 hours in a week. . .

'People are afraid to bring these kinds of cases because they don’t want to be blacklisted,' Mr. Kirschenbaum said. 'I would hope people use this as a wake-up call to get the money that’s clearly owed to them.'"


http://cityroom.blogs.nytimes.com/2010/07/07/lawyer-sues-firm-for-failing-to-pay-overtime/

67 comments:

Anonymous said...

This claim will fail. I asked several large NYC employment/labor law firms about the merits of bringing a case for non-payment of OT on doc reviews and was told that there is a special exemption for law, and the exemption applies regardless of whether the coder is paid on salary or by the hour.

What's clear is that the "professional exemption" needs to change. Law is now a McDonald's type business with more and more firms relying on hordes of hourly coders as opposed to salaried associates.

My hunch is that he's just doing this to shine a spotlight on the problem and get the law changed. Good luck to him. He has balls, which is more than I can say for most of the patehtic coders out there.

FrankZ said...

DOL: Practice of Law or Medicine
An employee holding a valid license or certificate permitting the practice of law or medicine is exempt if the employee is actually engaged in such a practice. An employee who holds the requisite academic degree for the general practice of medicine is also exempt if he or she is engaged in an internship or resident program for the profession. The salary and salary basis requirements do not apply to bona fide practitioners of law or medicine.

Anonymous said...

This lawsuit will be dismissed on SJ. I would move for sanctions under Rule 11 for such a frivolous law suit. Clearly, this lawyer is a TTT graduate.

Anonymous said...

Really what it comes down to is whether clicking one's life away and bucketing documents and emails into catagories set up by the client's attorney's, using a protocol drafted by the client's attorneys, and then supervised and reviewed (at least in theory) by the client's attorneys before being tendered to the opposing side constitutes the practice of law.

This isn't substantive research and motion/contract drafting here folks. In some jurisdictions, you have people with just JD's doing doc review, some just have LLM's, some might have licenses in other jurisdictions from where the review is taking place (is that then the unauthorized practice of law?) Some paralegals do a heck of a lot more than what coders do.

Having a court answer this question either way is interesting and god forbid this coder should get past summary judgment, you have to wonder if more lawsuits would follow. Of course this might force agencies to say all projects are capped at 40 hours. Rates have been driven down so far that maybe this guy feels like he has little to loose at this point.

laidofflawyer said...

Just as I began to temp the agencies had started requiring us to fill-out a form saying we understood that the CFR exempts professionals from overtime pay. I hope this dude is challenging the constitutionality of those regs. Otherwise, Rule 11 sanctions it will be.

But at least it's against Labaton. That firm was one of the worst temp interviews I ever had. Some pervy older associate asking whether I preferred Mary Anns or Gingers. I didn't name them in my post, but now that I've escaped the temp world, I'm happy to.

http://laidofflawyer.wordpress.com/2009/11/23/writers-block/

Trilby said...

Lawyers are not non-exempt. You would think he'd know this, being a lawyer.

Personally, I think everyone except business OWNERS should get overtime, but that's irrelevant.

Anonymous said...

Yeah, shoving people into unventilated basements and then having the fire deparment and OSHA called sounds real professional to me. Slapping the label "lawyer" on such people, when such people are treated dirt and after loans make less than illegal aliens sounds real legit.

Anonymous said...

Illegal Alien- 7 bucks an hour. All off the books, of course. 1500x7= $10,000. Pops out anchor baby and/or enters into a marriage of convenience. Collects food stamps, welfare, and Medicaid.
A recent report concluded that in every state in the nation, welfare pays far more than a low-wage job. According to the report, "The value of the total package of benefits [received by AFDC recipients] relative to a job providing the same after-tax income ranges from a high of $36,400 in Hawaii to a low of $11,500 in Mississippi. In eight jurisdictions...welfare pays at least the equivalent of a $25,000 a year job. $10,000 + $25,000=

ILLEGAL ALIEN'S REAL INCOME = $35,000.

---------------------------

TTT grad earns $20 bucks hour in some shitlaw factory. $20x1500=$30,000. Shitlaw worker of course has to pay taxes, or he is hounded to the end of the earth by the IRS. $30,000-6,000=$24,000. Shitlaw TTT grad of course gets no health insurance and is "too rich" to be eligible for Medicaid. Food stamps are off the table if he/she was lucky enough to find a job. Sallie Mae of course comes along and gets her huge piece. $24,000-10,000=$14,000

TTT GRAD'S REAL INCOME = $14,000.

Anonymous said...

If you're doing what they are allowed to do in India, you are not practicing law. Maybe there is some other exemption, but the practice of law it ain't.

Anonymous said...

Excellent!

Shylock is suing other Shylocks for their pound of flesh.

LESSON OF THE DAY: DON'T HIRE JEWS.

Sonia said...

My great-auntie was jewish. She was a Polish immigrant named Freida Shlomowitz, and she married into our community. Quit with the racist antisemitic flubdub. At least one of us is brave enough to stick it to the man.

"Lose," not "Loose" said...

Why do people consistently type "loose" when they mean "lose?" As in, "Rates have been driven down so far that maybe this guy feels like he has little to loose at this point."

Anonymous said...

Freudian slip. With rates falling this low, you have to be a little loose on the side to make loan payments.

Anonymous said...

"An employee holding a valid license or certificate permitting the practice of law or medicine is exempt IF the employee is actually engaged in such a practice."

How can doc reviewers be engaged in the "practice of law," if the very same work can and is done by both unlicensed practioners in the U.S. and abroad? Is it legal practice simply because that is what agencies and firms deem it in order to avoid compliance with the law?

Anonymous said...

They want to have their cake and eat it too. So is it the practice of law, or isn't it? If it is, why are unlicensed foreign nationals allowed to do it? If not, why the hell are we exempt from overtime? Make up your mind.

FrankZ said...

The ABA has decided that the work can be done by attorneys or non-attorneys supervised by attorneys.

If you're doing the work and are an attorney, you can't magically make yourself a non-attorney.

laidofflawyer said...

@11:25am. LMAO. I was taken to task so many times for that same loose/lose mistake on my blog. Hmm . . . might you be the same commenter? I think the obstacle may be the spelling itself. Lose sounds like booze---spelled with two Os. No one spells loose incorrectly though.

Ah the English language where the "ough" in ought, though, and through are pronounced three different ways.

@11:36am: doc reviewers are engaging in the practice of law---when you define practice broader than a courtroom. How to transactional attorneys preparing a 10-K for a corporation "practice" law. Lawyers are not required to prepare that filing. Doc reviewers analyze, distinguish, compartmentalize, make judgment calls, etc. They often review for privilege, redact, make determinations as to responsiveness to discovery or other demands. It may not be high-level analysis and processing, but it is still practicing law. Whether a college grad could do the same is irrelevant because a piece of paper and license precludes them.

NoJob4U said...

I think they have a good argument for document review not being the practice of law.

The ABA said so themselves that you can ship document review overseas and have non-attorneys perform the work (maybe they happen to be "attorneys" in India, but if they aren't licensed in NY, they would still be practicing law without a license in the State of NY) as long as they are supervised by a licensed attorney.

Does that sound like a paralegal to you? That sounds like one to me.

Nando said...

Maybe we should attend ninth-ranked Michigan Law School and work for Pangea3 in India. Who knows? Maybe the working conditions are (slightly) better.

http://abovethelaw.com/2010/06/we-knew-this-was-going-to-happen-michigan-encourages-law-grads-to-go-to-india/

Anonymous said...

How can clicking be "the practice of law" when American JD's who don't have the balls/brains/fortitude to sit for one lousy bar exam, not to mention foreign nationals, do the same job and are paid the same rate as barred attorneys? (I'm looking at you, Lex and Prudential).

I realize that state bar licensing authorities define this as the practice of law, but we all know the definition bears no relationship to reality whatsoever. They just want to cop the registration fees and make sure you give your pound of flesh to the numbnuts that teach continuing ed courses.

Had I known how corrupt the "profession" is, from top to bottom, I wouldn't have wasted my time and money in law school. And people complain about plumbers?????

Anonymous said...

My last few projects have been killing me with the hours. It's twisted that while I have to slave away as a galley salve for seventy hours a week, many of my friends are out of work. Isn't this what overtime laws were designed to prevent? And don't tell me that Big Mamma, Balki Bartokomous, Randy Hippo, Lucy Kow, Clovester, and Gaylard are professionals. At least that dump pays overtime.

Anonymous said...

"Ha! Ha! Your a looser moreon!"

Anonymous said...

This is about as much law as those cashiers were "Executives" when McDonald's didn't want to pay overtime. But at least those cashiers were doing a job IN the US, legal work can be done by unlicensed Indians.

The problem is you can't challenge the law. The judges are part of the elite and don't want to help out those at the bottom of the profession, so this will get slapped down quickly.

Rule 11 never actually applies, so that's not relevant. It's impossible to prove there was no good faith basis on a possible claim being there. Rule 11 is more for if somebody is trying to use the legal system to harass another person, or if there is no proof at all of anything (for instance, accusing somebody of robbing you that never stepped foot in the same state as you, just to bully them).

Anonymous said...

This law suit, albeit having merit, will decimate the doc review field. The logic being the following: If doc review is not a managerial practice of law, and thus subject to the exemption, then firms/businesses need not employ lawyers and JDs to perform it. Therefore, no more use for doc review attorneys and the rates will plummet even further as there are countless BAs out there who would gladly review documents for 15 bucks an hour and who, frankly, have just as much business 9and sometimes legal) acumen as the average doc reviewer.

Sad but true.

Anonymous said...

Are you familiar with Rule 11? - With what? Rule 11

Cheeseman. Cheeseman, is it? Mr Cheeseman. What is a fine? When you get a fine what do you do? You pay it and go back to business.

Anonymous said...

"The ABA has decided that the work can be done by attorneys or non-attorneys supervised by attorneys.

If you're doing the work and are an attorney, you can't magically make yourself a non-attorney."

So it is the worker's status as an attorney that makes the work the practice of law? If an attorney is serving mojitos or mopping out toilets, does that "magically" become the practice of law?

Anonymous said...

"If doc review is not a managerial practice of law, and thus subject to the exemption, then firms/businesses need not employ lawyers and JDs to perform it. Therefore, no more use for doc review attorneys"

But why not employ attorneys and simply pay them like non-attorneys? Oh yeah, that's what they're doing now!

Anonymous said...

If this case prevails, I will file a Section 90 promissory estoppel claim. How many times have I been promised OT that never materialized.

Anonymous said...

As long as the foreign nationals are black, the agencies will figure out a way to put them on the payroll, work visa or no work visa.

Anonymous said...

What's going on at Update? Check this out.

http://www.sec.gov/Archives/edgar/data/1331954/000133195410000005/xslFormDX01/primary_doc.xml

Anonymous said...

^^ 5:34, your link doesn't work.

Anonymous said...

Looks like Update is going to raise some capital?

Anonymous said...

why is update raising capital?

Anonymous said...

Labaton, you suck ass!
After your gigantic settlement from the Countrywide class action, it is time you were subject to some class action yourself, you self-righteous ass. You paid your “short term attorney employees” $32 an hour and billed them out for I’m sure hundreds of dollars an hour, money that came out of the settlement for the pension funds of teachers, firefighters and police of NY. You claim to represent the little guy against the big bad corporation while at the same time you screw your own workers by not paying them a decent wage, giving them little or no benefits and no overtime pay. You are such a hypocrite! Yeah, I am addressing you Ira and Joel. It is poetic justice that you are getting hit with a class action lawsuit and I hope it results in the disgorgement of your ill-gotten gains, you greedy bastards. I hope you are both deposed and that you sweat bullets; I will digest that transcript for you for free.
How have you the balls to represent the NYS Comptroller in the class action lawsuit against Countrywide and at the same time run a sweatshop? Does the concept of corporate citizenship and responsibility mean anything to you? Of course it doesn’t; it’s all what ever you think you can get away with. You have to squeeze the last penny out of everything. You did your market research last summer when you were staffing Countrywide and you came up with the $32 rate which was below market at the time. Of course you figured correctly that temp attorneys would take the low, flat rate because the project was scheduled to go for a year and the market was depressed and unpredictable at the time. I took your lousy project and put up with your team leader, Blondie the Nazi, at your Varick Street location and later his annoying sycophant sidekick, the loud, dumb and obnoxious redhead at 140 Broadway. Tina the bleached blonde Jersey Shore type, another team leader, added to the repressive atmosphere of your project.
I hope that the federal judge who approves the fees for the Countrywide settlement looks at what you paid your “short term attorney employees” and compares it to what you billed the class for their servies, a class that included the teachers, firefighters and police pension funds.
I applaud Moshe for bringing this action because even if he doesn’t win it shines a light on your hypocrisy and greed.
And in anticipation of any response from agency or abusive law firm apologists and advocates of pure capitalism, go fuck yourself ahead of time and I will not waste my time responding to you.

Anonymous said...

Bravo, 10:37--I couldn't have said it better myself.

Anonymous said...

@9:59

I dunno maybe open a new office somewhere? I mean there's not many reasons I can think of for new capital.

Anonymous said...

ROFL!!!!! Just googeled Labaton Sucharow. Even if this suit doesn't prevail, at least the world will get to see what a bunch of low life money grubbing assholes they are!

Anonymous said...

Update doesn't need 11M to open a new office. They are going to be acquired.

Anonymous said...

Here's hoping Labatongoes the way of Millbeg Weiss, a sister shyster law firm.

Anonymous said...

@10:06

Acquired? By whom?

Anonymous said...

The Virginia Bar claims that document review is not practicing law - for the purposes of waiver into their Bar.

Is it time to sue Lexolution, PartnerJD, SpecialCounsel, Legal Placements, and the other agnecies? They claim that we are not practicing law...

Anonymous said...

if its not the practice of law then privilege does not apply and lets all start selling the info that we know. Oh, but if priv does apply then it is the practice of law

Anonymous said...

This case sounds interesting. The comments here bring up a good point- either we are practicing law (in which case the projects can not be farmed out abroad) or we are not (in which case we should receive overtime). One can not argue both. One can, but it would be hard to do so.

Anonymous said...

Privilege applies whether we practice law or not. It flows from agency. A legal secretary working for a lawyer could no more disclose privileged information. This is something a first year law student should know.

Anonymous said...

I think it's a good move. He's a good guy with good amount of nerve. Quite the ladies man too, kosher version of the Fonz, an orthodox rock star. Making the ladies swoon in the hot, cramped doc review room. MK for president!

Anonymous said...

To determine whether the law firm considers the work of contract attorneys as "practice of law", will the law firm's breakdown of legal services pursuant to its fee request, for previous cases, eg., Countrywide settlement, show how many hours were completed by attorneys and nonattorneys?

Do any websites offer federal court filings?

Charlie said...

Kudos to Koplowitz!

Lawyers, to be exempt from federal overtime law, must hold a certificate entitling them to practice law, and must be actually engaged in such practice. That's why non-lawyers on document reviews get overtime while lawyers doing the same work do not. I've seen it repeatedly in my work.

Basic, first-level document review, if that's all you do on a job, is not the practice of law. It's routine, mechanical work, with no exercise of independent professional judgment. (How can you exercise professional judgment when you've got a quota of 600 docs a day to sweat out?) Under the federal standards, document reviewers are entitled to overtime pay.

But with hundreds or thousands of lawyers unemployed or under-employed, nobody should be working overtime in the first place. The overtime laws exist to encourage hiring and discourage sweating a small workforce.

This lawsuit is far from frivolous, and should succeed; but it won't fix this rotten industry. The employers are organized, and have pooled their economic power, which enables them to dictate terms and ignore ethics rules. Unless we do the same, our jobs are going to get worse, our pay will keep falling, and our hours will keep rising.

If you want to discuss possibilities for organizing, write me at charliedeltaesq at gmail dot com. Don't write from work. Don't write from your employer's computer, BlackBerry, or cell phone. Don't use your real name or regular email address at this point. (You don't know who I am.)

Anonymous said...

Does anyone have Moshe Koplowitz's e-mail address? This comment thread should be brought to the attention of him and his lawyers. They may have thought all these issues through, but our comments might prove helpful.

Anonymous said...

In NYS courts, particularly if filed at 60 Centre Street, this plaintiff loses. Sorry guys!

Anonymous said...

UPDATE BEING ACQUIRE?

This only supports my theory that most staffing agencies in NYC will either fold, be acquired, or merge by the end of 3QTR 2010.

In particular, my experience with Update is that allowing it to be dominated by a bunch of bitter women, who despise the attorneys they place, and who only want quid pro quos, is a REALLY REALLY nad business model!

They deserve it if they are forced to merge, lose independence, and finally have principals more competent then those who've been running the show for the last 4 years!

Pleasant news to my ears.

Anonymous said...

FrankZ

I suppose an argument could be made that doc review is not the practice of law. For example, if you want to get accepted to another state's bar based on experience, they do not count doc reviews as that experience. As such, the state bars themselves don't think it is the practice of law. And many projects don't require a license. And work outsourced to india does not require a license. Just a few thoughts, I know the suit will fail because he'll be considered a professional, but at least he's trying to make a point.

Anonymous said...

Believe me, Moshe has read this thread. Above all, Moshe is an optimist, and even if a little misguided, he is correct to bring up this issue.

The only positive thing I can come up with about our new status as exempt employees is that, if we take a break away from clicking, we would explain that we are able to perform our jobs away from our computer terminals (e.g. research, planning) as we are performing management or professional tasks.

I remember in 1993, on the West Coast, that this exempt nonsense was being imposed upon administrative assistants (to vice presidents) making $28K per annum, working full time!!

Anonymous said...

@7:57

I don't know if they are, I haven't heard anything outside of that one comment. On flip side they could accuired (if they even are) by RobertHalf pay which means $17/hr, getting treated like crap, and lots of bridge burning with firms.

Anonymous said...

COMPANY DIRECT HIRE
Labaton Sucharow seeks attorneys in order to defend against a class action lawsuit. In order to qualify for this assignment, you must have never worked on a doc review project in your career or consorted with temp attorney types or even considered working as a "contract attorney." You must carry yourself with the grace and demeanor of a seasoned Labaton attorney so that there is never a question whether you are exempt from the requirement to pay time and a half under the FSLA. You are required to interview for this position and there will be a "true attorney test" administered by our project leader, MM, the consummate professional attorney.

Anonymous said...

Moshe again went to Labaton. "Let my people go, give my temps time and a half. If you refuse to do what I demand, I will plague all of 140 Broadway with frogs; the East River shall swarm with frogs; they shall come up into your palace onto the 34th floor and into your fancy offices and conference rooms, and into your mansions with your undocumented alien servants, and into your ovens and your kneading bowls; the frogs shall come up on you and your people and on all your officials including your CFO."

Anonymous said...

Ya'll are dreaming. Doc review is the dirty little secret, approved by the ABA.

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Anonymous said...

Unless the FLSA professionial exemption requirements have changed very recently, they are only applicable to attorneys that are being paid on a salary or fee basis. It's not open to interpretation as the requirement is quite explicit as are the definitions for compensation on a salary or fee basis.

That renders the need to analyze whether the work involved is actual attorney work moot.

Anonymous said...

Does anyone know if this guy is able to get any work? My guess is, the way the agencies are, no one will let him near a job-hopefully he has some good solid experience doing other things so he can at least make a buck and put some food in his mouth.

Anonymous said...

they should take them to court and....SMACK THE BLACK OFF 'EM !!!!!

Charlie said...

Anonymous said,
Unless the FLSA professionial exemption requirements have changed very recently, they are only applicable to attorneys that are being paid on a salary or fee basis. It's not open to interpretation as the requirement is quite explicit as are the definitions for compensation on a salary or fee basis. That renders the need to analyze whether the work involved is actual attorney work moot.

See US DOL Fact Sheet #17D: Exemption for Professional Employees Under the Fair Labor Standards Act (FLSA):

"An employee holding a valid license or certificate permitting the practice of law or medicine is exempt if the employee is actually engaged in such a practice. An employee who holds the requisite academic degree for the general practice of medicine is also exempt if he or she is engaged in an internship or resident program for the profession. The salary and salary basis requirements do not apply to bona fide practitioners of law or medicine."

Anonymous said...

The Labaton class securities litigation hired its doc review attorneys as associates and employees; thus they were not paid overtime. Of course, they all were fired when negotiations with the defendant got underway (in April 2010). But Labaton had a bigger and better reason to hire its doc reviewers than just to avoid OT: it was that they could, within the US District court's settlement fund, present evidence to the judge and get reimbursement of their attorneys fees by stating that its coders were associates at $290-$320 hourly! They must have tacked on $15MM in profits!! Of course the coders were paid $32.00 straight.

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