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District Court Decides “Whether a Paralegal is an FSLA Exempt Employee from Overtime is a Statement of Fact”

A Mississippi District Court has held that whether a paralegal is an exempt employee under the Fair Labors Standard Act (FLSA), and therefore not entitled to overtime compensation, is a statement of fact for consideration.

Cherie Blackmore was a paralegal at Allen, Vaughn, Cobb & Hood. When Attorney Tom Vaughn left and started a new firm, V&B, Blackmore went with him. At V&B, Blackmore was a salaried employee whose annual salary was $50 thousand. She worked a 40 hour week but had some discretion over her own schedule. Though she chose a schedule of 8 hour days, 5 days per week, commencing at 8:15 a.m. and ending at 5:15 p.m., with a one hour lunch break, she often worked more than 8 hours a day and often exceeded 40 hours each week.

V&B classified Blackmore as an exempt FLSA employee, and per V&B policy, Blackmore was given 1.5 comp hours for every 1 hour of overtime worked in lieu of overtime pay. V&B policy also required exempt employees to get preapproval for any overtime from the partner for whom the staff member worked, and then submit a form to the office administrator outlining the overtime, i.e., working more than 8 hours in a single work day. At no time while working for V&B did Blackmore report nor request overtime compensation. Blackmore was terminated by V&B in December, 2009. One year after her termination, Blackmore filed a Complaint requesting overtime compensation. V&B asserted the affirmative defense that Blackmore was an employee who was exempt from the overtime provisions of the FLSA, and that accordingly the firm is not liable to Blackmore for overtime wages. V&B moved for summary judgment on all of Blackmore’s claims. Blackmore moved for partial summary judgment on the issue of being an exempt employee.

The FLSA states that a non-exempt employee who works more than 40 hours in a regular workweek is to be paid at a rate not less than one and one-half times the employee’s regular rate of pay. 29 U.S.C. § 207(a) (1). However, if the employee falls within an exemption category, 29 U.S.C. § 207(a) (1) does not apply. The burden is on the employee to prove he or she does not fall within an exempt category. Furthermore, if an employer fails to properly pay overtime to a non-exempt employee, each failure to properly pay overtime for hours worked in excess of forty in a work week represents a new violation of the FLSA. See Knight v. City of Columbus, 19 F.3d 579, 581 (11th Cir. 1994). The statute of limitation for filing an overtime compensation complaint is two years. If the employer acted willfully, the statute of limitations is extended to three years.

The court noted that there are three categories of exempt employees: executive, administrative, and professional. 29 U.S.C. § 213(a) (1). Blackmore was neither an executive or administrative employee. Regarding the final category, an employee meets the duties component of the professional exemption when the employee has a primary duty involving work that requires advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized instruction. 29 C.F.R. § 541.300(a). Furthermore, advanced knowledge is chiefly intellectual in character and traditionally exists in professions such as law, medicine, accounting, engineering and “similar occupations that have a recognized professional status.” 29 C.F.R. § 541.301. In July 2011, Title 29 (“Labor”) of the Code of Federal Regulations was amended to specifically exclude paralegals as exempt learned professionals because an advanced specialized academic degree is not a standard prerequisite for entry into the field. However, the amendment noted that if the paralegal possessed advanced specialized degrees in other professional fields and applied that advanced knowledge in the performance of his or her duties, then the paralegal would qualify as an exempt FLSA employee.

Blackmore asserted that she possessed a four year undergraduate degree from the University of Southern Mississippi in a double major, paralegal studies and psychology. In addition, she had a master’s degree in public relations. V&B asserted that her work was essentially exclusive in the mass tort unit of V&BW where she was the senior paralegal and responsible for organizing and directing tasks of other paralegals. As whether Blackmore’s advanced knowledge was used in her paralegal duties is a question of fact, Blackmore’s motion for partial summary judgment and V&B’s motion for summary judgment are denied. Blackmore v. Vaughn & Bowden, PA, Dist. Court, SD Mississippi 2012.

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