Will this hurt or help?: FLSA Edition

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  1. Avatar LeeEsq
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    What is the exact nature of Lola’s complaint? I understand why he isn’t exactly thrilled to be doing doc review but can’t figure out he is exactly suing over. Even if what lawyers who are doing doc review is limited, I can’t imagine without any legal training being able to determine if a document is relevant to a particular case, the level of relevancy, or if it is privileged with the same degree of success as a person with legal training. Relevance and privilege are legal concepts.Report

    • Avatar Stillwater in reply to LeeEsq
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      What is the exact nature of Lola’s complaint? I understand why he isn’t exactly thrilled to be doing doc review but can’t figure out he is exactly suing over.

      Me either.Report

    • Avatar Saul Degraw in reply to LeeEsq
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      I think the big argument was that since he was paid hourly, he deserved to get overt time. The rest of it is arguments about why he and people with similar situations are not FSLA exempt despite being lawyers.Report

      • Avatar LeeEsq in reply to Saul Degraw
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        Got it. It makes sense. This might be neutral. You don’t need to be a lawyer to do doc review but your going to need some legal training. Since doc review projects are temporary, it is easier to higher lawyers rather than have to repeatedly teach non-lawyers some basic legal knowledge.Report

        • Avatar Richard Hershberger in reply to LeeEsq
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          I worked on a document review project for a couple of years. I don’t recommend it as a lifestyle.

          Frankly, in my limited experience you don’t need any legal knowledge at all. We were, among other things, looking at field reports from pharmaceutical reps creating metadata by coding in the names of any doctors mentioned. You need someone with legal knowledge to set up the project, but the people actually doing it are essentially drones.Report

  2. Avatar Stillwater
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    Now it is also an issue that is hurting skilled white-collar workers who used to be in the most prestigious and well-respected professions.

    Prestige and respect is at stake? Dayum. Now we all – as a society! – can start taking this issue seriously!!Report

    • Avatar Saul Degraw in reply to Stillwater
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      Did it just get bitter in here?

      I find this sort of attitude interesting. There are lots of people who feel underemployed in a wide-variety of professions because of technological change and the Great Recession.

      There seem to be two general responses to this:

      1. Accept ones fate and just accept I don’t know, whatever comes your way.

      2. Have some hope that things will get better and improve and fight for it.

      People in category #1 seem to think that people in cateogry #2 are a combination of arrogant and/or delusional. There have been career turnarounds before haven’t there?Report

  3. Avatar Kolohe
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    I think it’s less about technological advancement than it’s about the problems with carve outs, exemptions, and special pleadings in labor law. See also, the recent New York state move to give fast food workers 15 / hr min wage sooner than other workers.Report

  4. Avatar Mark Thompson
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    1. I took the liberty of correcting the reference to the “FSLA” to the “FLSA.”

    2. This is definitely an interesting case. As I recall – though it’s been awhile now, so I could be wrong – right around 2003 or 2004, the DC Bar took the position that document review was inherently the practice of law and demanded that all attorneys doing document review be barred in DC. I mention this because it seems that the reliance on state law to determine whether a document reviewer is engaged in the practice of law could potentially limit this decision.

    3. My initial inclination was to disagree with the Fourth Circuit on this, but reading the opinion, I think they got it right on the facts, at least as alleged. From what I can gather, it seems like the allegation in the complaint was that, while the plaintiff was doing document review, he wasn’t being asked to use any legal judgment in the process. In other words, as alleged in the light most favorable to his claim, his complaint could be construed as saying he was just being asked to categorize by subject matter according to rules set up for him by others, rather than being asked to make any determinations as to whether something was privileged or relevant. It seems to me that if it turns out he was being asked to make at least initial determinations about privilege or legal relevance, etc., then he will lose on summary judgment.

    Then again……there’s a bit of a conundrum here since this plaintiff is not barred in North Carolina but the court determined that his allegations could have amounted to the practice of law in North Carolina, creating all sorts of UPL issues for both him and – potentially – Skadden.

    3. This case may settle, but it seems that it’s also a case that is unusually likely to go to trial if Skadden thinks it can win at trial because of the precedential issues. If the 4th Circuit ruling on the MTD stands as the final word on the case, then Skadden (and other biglaw firms that are equally stingy on overtime for doc review attorneys) is going to have to start paying its doc review attorneys overtime going forward even if it settles with this particular class for just back pay; otherwise, these suits will keep being filed since you can’t evade the FLSA by contract. More likely to me is that it at least goes through an MSJ unless Skadden just decides to completely wave the white flag.

    4. I’m not at all sure how technological advancement is hurting lawyers here. Like you said, most document review work still requires at least some legal judgment and, if firms are going to charge clients more than peanuts for document review work, they need to have attorneys doing the work. What’s more, it’s worth pointing out that the sheer number of documents to review nowadays has grown exponentially in just a few years. The entire concept of e-discovery effectively didn’t exist at all 20 years ago, and even Zubulake was just a little over 10 years ago. I also recently saw a statistic showing that the amount of data companies store has increased something like 10 fold in just the last decade, meaning that there’s effectively 10 times as much data to review now. In other words, technology is the reason why document review work exists as a substantial thing at all, despite the many other problems with document review work. Predictive coding certainly mitigates the effects on document review jobs of a lot of this growth, but it seems to me that its primary effect is to make those jobs more manageable rather than eliminating them altogether. Though, I suppose it depends on your frame of reference, too – the explosion in data is, I assume, slowing, and so if you’re comparing to, say, two or three years ago, then predictive coding may well be resulting in fewer doc review jobs; on the other hand, if your comparison is to even five or six years ago (and certainly to 10 years ago), then my guess is that it probably is just mitigating the explosion in data.Report

    • Avatar Saul Degraw in reply to Mark Thompson
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      @mark-thompson

      The case took place in the 2nd Circuit, not the 4th despite the plaintiff working in North Carolina. My guess is that the plaintiff’s attorney decided to sue Skaden on their own turf for procedural reasons and also possibly for a more favorable jury. The decision to outsource to North Carolina was done by Skadden brass in NYC.

      “Then again……there’s a bit of a conundrum here since this plaintiff is not barred in North Carolina but the court determined that his allegations could have amounted to the practice of law in North Carolina, creating all sorts of UPL issues for both him and – potentially – Skadden.”

      In my experience, the agencies that do bar review just want you to be barred in any state. I have mainly been direct hire but also worked through agencies that compete for projects from the firm. A doc reviewer will be paid something like 25-36 dollars an hour. The agency will probably bill the law firm double that and the law firm will probably bill the client double what the agency bills them, maybe more. The agencies only care that you have a bar card. The cases that doc reviewers generally work on are big and complex and potentially involve Multi-District Litigation.Report

      • Avatar Mark Thompson in reply to Saul Degraw
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        My mistake about the 2d/4th distinction. Probably wise of the plaintiff’s attorney to sue in the 2nd Circuit, which is definitely more labor-friendly.

        While I’m aware that the agencies typically don’t care where you’re admitted (except to the extent the place you’ll be doing the work requires you to be admitted there, which as I said, is the case in DC IIRC), my point is that if the standard is “does this amount to the practice of law in North Carolina such that the review attorney is FLSA-exempt,” then there are definite implications if the court rules against the Plaintiff and for Skadden, and those implications include that Skadden (or at least the agencies it uses) needs to start making sure that the people it hires to do doc review work in NC are barred in NC.

        If the answer is just “it’s not the practice of law, but it is legal support services,” then there’s no legal requirement for the reviewer to be barred anywhere, and never was. This is probably the right conclusion in most instances, anyhow – as long as the supervising attorney is barred in the state where the case is pending (or in another relevant state if it’s a merger/transactional issue), then it doesn’t matter from a legal standpoint if anyone else involved is admitted anywhere. But that’s always been true of any type of work – it’s always been the case that, say, paralegals are allowed to draft briefs as long as an admitted attorney ultimately reviews their work and takes responsibility for the actual submission.

        The reason this is usually done by lawyers isn’t that there’s some legal or ethical obligation for lawyers to write briefs (or review documents), but because clients and firms generally recognize that this type of work is usually best performed by people with legal training.

        Point being that this convention will not be impacted one way or another by how this case is ultimately decided. If the court ultimately ruled for the plaintiff here, clients and firms would be no more or less likely to want attorneys to do this type of work other than the extent to which having to pay overtime exacerbated the cost differentials between having attorneys and non-attorneys do the work (which will be minimal because most firms and agencies, as I understand, already pay overtime anyhow).Report

  5. Avatar Michael Cain
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    says:

    I used to be curious about some of this from the opposite direction. During my tech career, there were a couple of occasions when a sizable chunk of my filing cabinet was photocopied, and my hard disks imaged, as part of discovery in IP cases. I wondered who was reading my (occasionally exotic) tech notes and code and deciding what was relevant and what wasn’t. Largely off topic, the hard disk imaging system that was used was clearly Windows-based; I wondered what it did with the disks out of my Linux boxes.Report

  6. Avatar Brandon Berg
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    says:

    If a machine could do it, why are they paying a human to do it?Report

    • Avatar Autolukos in reply to Brandon Berg
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      says:

      Tradition.Report

    • Avatar Marchmaine in reply to Brandon Berg
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      says:

      Satire.

      Machines still have a difficult time parsing Satire/Sarcasm. I work in a data field that enables Sentiment Analysis, and while the work might be just good enough to guess at who next to sell a lolipop… I wouldn’t want anyone’s life hanging in the balance.

      Why Sentiment Analysis is Hard

      Of course, this is just the tip of the iceburg… even e-discovery and natural language parsing comes well short of anything other than making the haystack smaller for the professional searchers.

      Mr. Thompson said above that one might assume the rate of data is slowing? Nope, data is exploding (good for my business), and will positively go nuclear (maybe even nucular) with machine data tied to both the IOT and you personally. All those little apps you have… on your phone… with you all the time… while you are in the business locations of the apps you gave permission to?

      On the other hand, all the additional location data, plus proximity data of other human devices might just start to provide enough context for machines to guess at Satire.Report

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