A district court in New York dismissed the putative collective action filed by a contract attorney who performed document review for Skadden, Arps, Slate, Meagher and Flom LLP (“Skadden”) for fifteen months. See Lola v. Skadden, Arps, Slate, Meagher & Flom LLP. Under the Fair Labor Standards Act (“FLSA”), an employee is exempt from overtime as a professional employee if he or she is “the holder of a valid license . . . permitting the practice of law” and “who is actually engaged in the practice thereof.” 29 C.F.R. § 541.3. The named plaintiff and proposed class representative, David Lola, was a licensed attorney, and, therefore, the dispositive question was whether he was practicing law such that he qualified for the exemption.
Last week, the California Supreme Court issued its decision in Peabody v. Time Warner Cable, Inc., deciding that employers may not apply commission payments to earlier pay periods for the purposes of establishing that an employee meets the minimum wage component under the commissioned employee exemption.