Crain's Cleveland Business, Wage dispute spurs suit against Cleveland law firm

By ARIELLE KASS

4:30 am, March 15, 2010

Wage and employment lawsuits are on the rise, labor attorneys say. But to see one against a law firm is still a rarity.

In Cleveland, there is one such case in U.S. District Court against Turocy & Watson, a boutique intellectual property firm. A former legal secretary there sued in December, claiming the firm did not pay her and others for overtime work, as required by law.

The suit recently has been conditionally certified as a collective action under federal law and a class action under Ohio law, making it a hybrid action; named as members of the class are 38 legal secretaries, paralegals and docket personnel who either had worked at the firm since February 2007 or still are working there.

Thus far, just six have opted out of the suit entirely, plaintiff's attorney Anthony Lazzaro said. Members of the class automatically are entered into the Ohio portion of the suit, but can decide not to participate at all; they also can elect to opt into a federal claim, which 13 people have. The rest have not responded. The affected employees have until March 23 to decide if they want to participate.

Mr. Lazzaro, who is representing former Turocy & Watson legal secretary Karla Osolin, is owner of the Lazzaro Law Firm in Cleveland. He said Ms. Osolin, a former legal secretary at Jones Day and other firms, went from receiving overtime pay in addition to her salary at Jones Day to receiving only a salary at Turocy & Watson despite a schedule that included working more than 40 hours a week.

“She immediately knew something was wrong,” he said.

Barry Freeman, an attorney at Littler Mendelson who is representing the 61-employee Turocy & Watson, said the firm would not comment about ongoing litigation.

Ms. Osolin worked at Turocy & Watson from September 2008 to April 2009. Mr. Lazzaro said while many small firms may assume that paying a salary means there is no need to pay overtime, they're wrong.

In order to be exempt from receiving overtime, employees must manage two or more individuals and have the ability to hire and fire people, or must have an administrative position where they set policy. There also are exemptions for advanced specialists, such as lawyers and doctors, even if they do not fall into either category.

Mark D. Katz, vice chairman of the employment and labor group at Ulmer & Berne, said there had been some question previously regarding whether paralegals were exempt, but that issue was solved years ago, in a 2004 regulation.

“It's published. If you look for it, you'll find it,” Mr. Katz said. “Either they're very naïve or they're not compliant.”

Mr. Katz said wage and hour cases continue to grow, and not only against mom-and-pop stores. Retail giant Walmart has been struck by them, he said, as have other large corporations. The numbers have started to pick up over the last five years or so, he said.

In the past, such lawsuits were brought almost exclusively by the U.S. Department of Labor. Now, more nongovernmental attorneys are getting in on the action, which Mr. Katz said can be lucrative for an attorney.

At least one other law firm, Drinker Biddle & Reath of Philadelphia, has seen a similar lawsuit in its Washington, D.C., office. Mark Tabakman, a partner in the labor and employment group at Fox Rothschild in New Jersey, said he has seen the possibility for such suits at other law firms he has represented, but that complaints were made internally, instead of to the Department of Labor.

In almost every case, Mr. Tabakman said, the issue was misclassified employees. As workers continue to research wage laws online, Mr. Tabakman said he expects individual issues will trigger other actions.

Brian Kelly, a partner in the labor and employment group at Frantz Ward, said an employer doesn't need to intend to violate the law to be liable for doing it. Employees who take work home of their own volition or check voice mails and e-mails from afar may still be entitled to overtime pay. Even if supervisors didn't authorize the work, they may have a reason to know it is being done off the clock.

As smartphones become increasingly ubiquitous, Mr. Kelly expects the prevalence of such suits to continue to rise.