A law school graduate who was hired as a $75,000-a-year litigation consultant partly because of her degree is entitled to overtime pay because the work she was assigned did not require “learned professional” skills, Southern District Judge Shira Scheindlin (See Profile) has held.
Scheindlin said the fact that Adina Kadden’s 2001 degree from the Benjamin N. Cardozo School of Law helped her get a job with VisuaLex is not dispositive. Rather, she said, “the relevant inquiry…is whether the employee’s primary duty is the performance of work requiring advanced knowledge in a field of science or learning that is customarily acquired by a prolonged course of specialized intellectual instruction.”
Kadden’s attorney, Mark Risk of Manhattan, said the ruling has implications for the many law school graduates who find work not directly involving their legal skills. A recent survey by the American Bar Association found that only 57.2 percent of 4,702 graduates of New York’s 15 law school’s had found full-time, long-term jobs requiring bar admission within nine months of their 2011 graduation (NYLJ, June 22).
“As more young lawyers are taking non-traditional jobs, the decision serves as a reminder to employers that they are not exempt as professionals simply by virtue of having a professional degree, but that the focus of the inquiry remains whether that degree is required to do the job at issue,” Risk said.
VisuaLex’s attorney, Traycee Ellen Klein of Epstein, Becker & Green, said 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,” Klein said. “I think it impacts every other business with people who are acting as consultants.”
Kadden v. VisuaLex, 11-civ. 4892, was brought under the Fair Labor Standards Act (FLSA).
Kadden was hired as a graphics consultant to a Westchester County firm that provides trial support to law firms engaged in major litigation. She was hired at a salary of $75,000 annually and the offer letter she received in 2008 promised overtime pay for work beyond 40-hours weekly. However, about a year after Kadden took the job the company suspended overtime pay for professional staff. Kadden sued under the FLSA.
At issue was whether Kadden’s work was exempt from FLSA overtime requirements for any of the three reasons cited by VisuaLex: that she was a “creative professional”; that she was a “learned professional”; or that she was an administrative employee.
Scheindlin held that VisuaLex could not sustain its burden of proving that Kadden was exempt under any of those provisions.
The decision notes that since VisuaLex was founded in 1999, it has employed nine graphic consultants, four of them with law degrees, four with advanced degrees in fields ranging from forensic psychology to English literature and one with a paralegal certificate.
“To qualify for the learned professional exemption, the educational requirements must not only be advanced, but also specialized,” Scheindlin wrote. “There is no evidence that Kadden was hired to fill a different role than other graphics consultants—one that required use of her law degree.”
Scheindlin, however, said “this is a difficult case,” given Kadden’s academic qualifications and a salary that makes “her a less than obvious candidate for the protection of the FLSA’s maximum hours requirements.”
The judge observed that the U.S. Supreme Court in Christopher v. SmithKline Beecham, 132 S. Ct. 2156 (2012), said that individuals earning “more than $70,000 per year…are hardly the kind of employees that the FLSA was intended to protect.”
Regardless, Scheindlin said Kadden’s relatively high salary does not end the inquiry.
“What matters is what this particular employee’s primary duties actually were,” Scheindlin wrote, adding that her “conclusions are narrowly drawn to Kadden’s particular circumstances and do not reflect a judgment about the job of graphics consultant in the industry more generally.”
The matter will now return to court for an assessment of damages.
Scheindlin rejected the plaintiff’s request for liquidated damages in light of the company president’s “considerable” efforts “to ascertain whether graphics consultants were exempt from the FLSA overtime requirements” and the employer’s genuinely held belief in what the primary duties of a graphics consultant were.”
@|John Caher can be contacted at email@example.com.