As an employment lawyer, I spend most of my time working to help people recover the unpaid wages and overtime they are owed. I was amused – but not very surprised – to see a recent story about a successful overtime lawsuit against a law firm, Bernal v. JJ Little and Associates. Aside from the irony of a law firm being sued for overtime violations, this case presents some important lessons about the limitations of the administrative exemption to overtime law, and the need to pay your receptionist or secretary overtime.
First, the facts. Noemi Bernal worked as a secretary for the law firm of J.J. Little and Associates, located just outside Los Angeles. She was hired at a salary of $1,000 a week, and told she wouldn’t have to work evenings. As so often happens, promises made pre-employment were broken once the actual work began. Hours can be unpredictable at law firms, particularly during trials, and Ms. Bernal alleged that she worked as much as 20 hours a day during trials. Even during regular workweeks, she was required to answer texts on nights and weekends. The court awarded her $91,000 in unpaid overtime and $30,000 in interest. Her lawyers also recovered $277,000 in attorneys fees, separate and apart fro Ms. Bernal’s recovery (they originally sought over $800,000).
This was an expensive mistake on the part of JJ Little and Associates, and an entirely avoidable one. However, there are two simple lessons which any company (or worker) can learn from this case.
First, secretaries and receptionists should be paid on an hourly basis, and paid time and a half for overtime. Many companies believe that, because secretaries sit in an office, they count as “white collar” workers and may be paid a salary, without overtime pay. This is not the law – an employer must pay its secretary overtime at a time and a half rate. While certain administrative professionals may be overtime exempt, that exemption only applies if the worker regularly exercises “discretion and independent judgment with respect to matters of significance.” Secretaries rarely, if ever, exercise the kind of discretion and independent judgment necessary to meet this test. This is particularly true at a law firm — a secretary, with no law degree, cannot make decisions regarding “matters of significance” with respect to most law firm operations. They are therefore eligible for overtime pay for all hours worked past forty in a workweek (and, in California, past eight in a workday).
Second, companies must pay for off hours work, even for things as simple as responding to texts, e-mails, or phone calls on nights and weekends. Many employers think these kinds of interruptions don’t count as hours worked because the employee isn’t physically in the work building. Again, the law is otherwise. An hourly employee who answers e-mails, voice messages, or performs any other kind of work during off hours must be paid for that time, just as though he or she was in the office. While the time spent responding to one text may be minimal, it adds up over the months and years.
The Bernal case did not set any groundbreaking precedent — all of these points are well established issues in wage and hour law. Nevertheless, it may serve as a useful reminder to other workers and companies who may be facing similar issues.
If you have been required to work more than forty hours in a week without overtime pay; or have been required to work during off hours, off the clock, e-mail New Orleans overtime lawyer Charles Stiegler today or call me at (504) 267-0777.