On December 30, 2015, a federal district court in Manhattan ruled that a temporary contract attorney was not entitled to overtime under the Fair Labor Standards Act or the New York Labor Law for the time he spent assisting in a large document review.  William Henig, who brought his claims as a putative class and collective action against the law firm Quinn Emanuel Urquhart & Sullivan, LLP, alleged that he was entitled to overtime pay for his work despite federal regulations excluding licensed attorneys engaged in the practice of law from overtime eligibility.  See, e.g., 29 C.F.R. § 541.304(a)(l).

Henig argued that the document review only required him to follow basic instructions and that he did not draw on legal knowledge and judgment to perform the work.  As such, he claimed he was not “engaged in the practice of law” and therefore did not qualify for the learned professional exemption to the overtime laws.  The Court disagreed and granted Quinn Emanuel’s motion for summary judgment.  While acknowledging that junior attorneys are often tasked with document review projects that are “necessarily repetitive in nature, modest in intellectual scope, and banal in character,” the Court nonetheless held that Henig was indeed engaged in the practice of law while reviewing the documents.

Henig’s duties as a reviewer entailed identifying and “tagging” documents as responsive, privileged, and/or confidential. He argued that the directives Quinn Emanuel provided for this task instructed him “to tag documents responsive or not responsive based on the presence or absence” of certain terms or names, which required “merely the ability to read.”  With respect to privilege, Henig likewise asserted that he was “merely … to identify attorneys and clients by referring to the lists and charts Quinn Emanuel provided.”  The Court, however, viewed Henig’s description of his work as an oversimplification. In particular, the Court found that Henig’s use of the deliberative process and “key” tags on certain documents, as well as his comments on the potentially privileged nature of other documents, made clear that his work involved the type of professional judgment necessary to be engaged in the practice of law.

Quinn Emanuel’s motion for summary judgment had been held in abeyance pending the Second Circuit’s decision in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP. In Lola, discussed in our earlier post, the Court of Appeals held that  document review conducted by a contract attorney is not necessarily “practicing law,” particularly if the attorney “provided services that a machine could have provided.”

Henig v. Quinn Emanuel Urquhart & Sullivan LLP et al is a welcome development for law firms engaging contract attorneys for large scale document reviews, but firms should keep in mind that Lola leaves the door open for the professional exemption to fall to the wayside if the review does not entail some modicum of legal judgment.

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Photo of Allan Bloom Allan Bloom

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration, before government agencies, and in private negotiations. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York Times, Reuters, Bloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes for more than 20 years.

A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.