The Fair Labor Standards Act (“FLSA”) requires an employer to compensate an employee who works more than forty hours per week “at a rate not less than one and one-half the times the regular rate at which he is employed.” See 20 U.S.C. § 207(a). Specifically, the FLSA provides in pertinent part:
Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1).
The FLSA exempts from the requirement to pay overtime “any employee in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). However, since the FLSA is a remedial statute, any exemptions are to be narrowly construed and the employer must show that the exemption applies “plainly and unmistakenly.” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L. Ed. 2d 393 (1960). The Eleventh Circuit has held: “[t]he employer bears the burden of proving the applicability of a FLSA exception by clear and affirmative evidence.” Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th Cir. 2001). This is because “[t]he Fair Labor Standards Act was designed ‘to extend the frontiers of social progress’ by ‘insuring to all our ablebodied working men and women a fair day’s pay for a fair day’s work.” Message of the President to Congress, May 24, 1934, (cited in Sack v. Miami Helicopter Service, Inc., 986 F. Supp. 1456, 1463 (S.D. Fla. 1997)). The FLSA does not define the parameters of the exemptions. Instead, the exemptions are defined by Department of Labor regulations, which are entitled to deference from the Court under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed. 2d 694 (1984) and the Administrator’s opinion letters which entitled to weight under the factors set forth in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). See Christensen v. Harris County, 529 U.S. 576, 587 (2000).
The Department of Labor has frequently stated that paralegals are not exempt from the overtime requirements of the FLSA. See e.g., Opinion Letter of January 7, 2005 from Alfred B. Robinson, Jr., Acting Administrator, Wage & Hour Division, Department of Labor, 2005 DOL WH LEXIS 2 (discussing “the longstanding position of the Department that paralegals and legal assistants do not qualify for the learned professional exemption.”). The Department has stated that “[p]aralegals and legal assistants generally do not qualify as exempt learned professionals because an advanced specialized academic degree is not a standard prerequisite for entry into the field.”. 29 C.F.R. § 541.301(e)(7). The Department has also opined that “[i]t has long be our opinion that paralegal employees’ duties do not involve the exercise of discretion and independent judgment of the type required by [the administrative exemption].” See Opinion Letter of March 20, 1998 from Daniel F. Sweeney, Office of Enforcement Policy, Fair Labor Standards Team, 1998 DOL WH LEXIS 32.
Each failure by an employer 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) “[e]ach failure to pay overtime constitutes a new violation of the FLSA.”). The statute of limitations for actions under the FLSA is extended to three years for “willful” violations. See 29 U.S.C. § 255(a). In light of the clear requirements to pay paralegals overtime, a failure to do so will likely be considered willful and consequently allow for the three years limitations period.
Employees who are not paid overtime properly are entitled to recover the amount of their unpaid overtime compensation and an additional equal amount as liquidated damages. 29 U.S.C. §216(b). Thus, if the employee is due $2500 in unpaid overtime, it the total recovery is doubled to $5000. In addition, the FLSA provides that prevailing employees also recover their reasonable attorney’s fees and costs.
In conclusion, paralegals that work in excess of forty hours in a workweek are generally entitled to overtime at time and one half their regular rate of pay plus an equal amount in liquidated damages for the three years prior to the filing of suit..
If you have questions about paralegals and overtime or would like to discuss a potential claim for overtime, please contact Ryan Barack rbarack@TampaBayEmploymentLaw.com or (727) 441-4947.
By Ryan D. Barack
Board Certified Labor & Employment Lawyer
Kwall, Showers & Barack, P.A.
Tampa Bay, Florida