Berks County Bar Association The Berks Barrister Spring 2019 - 12

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Lawyers as Employers:
Managing Your Most Valuable Resources
By Kevin A. Moore, Esquire

A

s licensed professionals, attorneys are generally viewed
as "learned" professionals, with unique training and
skills. But what happens when attorneys find themselves
in a position that requires hiring, supervising, and terminating
employees either at a firm or in a solo or small practice?
Although attorneys are required to complete 12 hours
of continuing legal education each year, human resources
management courses are not part of law school curriculum. So,
with all the caveats in the world, let's take a look at the following
non-exclusive, overly-generalized, guidelines every attorney
responsible for interviewing, hiring, and dismissing employees
should know:

Which Laws Apply to You?

As an employer, an attorney first needs to know that employee
rights may be protected by federal law, state law, county or
municipal ordinance or a combination of jurisdictions. In most
instances, the number of employees dictates whether specific
laws and regulations apply. Federal employment laws may cover
employers with 50 or fewer workers. Conversely, Pennsylvania's
all-encompassing civil rights statute, the Pennsylvania Human
Relations Act ("PHRA"), applies to any employer with four or
more employees. In Berks County, one municipality, the City of
Reading, enforces a Human Relations Ordinance, which applies to
any employer with at least five workers.

Employee or Independent Contractor
Classification?

Employment laws only apply to "employees" and not
"independent contractors." Law firms often become complacent
and allow themselves to overlook the distinction between a
"contract" attorney/staffer who may be an "employee" and a bona
fide "independent contractor" attorney.
The distinction is largely a question of "direction and control."
Under federal law, there are two well-known "tests": the FLSA test
and the IRS test. Under state law, the applicable test depends on
the statute implicated: the Pennsylvania Minimum Wage Act, the

Worker's Compensation Act or the Pennsylvania Unemployment
Compensation Law, for example.

Exempt or Non-Exempt Employees?

Attorney employers hire employees and pay either hourly
wages ("non-exempt") or salaries ("exempt"). The distinction
dictates whether the employer must follow time-keeping and
compensation rules consistent with state and federal law (the
PMWA and the FLSA).
Under federal law, the U.S. DOL has published detailed
regulations and guidelines to aid employers with compliance.
The primary exemptions are: Executive, Administrative, Learned
Professional, Creative Professional, Computer Professional, and
Outside Sales. Because titles alone do not determine an employee's
classification, the exemption analysis begins with the "Duties Test"
and the "Salary Test" under the guidelines. Both tests must be
satisfied in order to preserve the exemption.
Within a law firm, the most frequent inaccurate distinction
involves paralegals. For many years, both state and federal wage
and hour authorities have made it clear that a "paralegal" does not
meet the "learned professional" test for the exemption under the
law, and no other exemptions apply. As for other positions, any
lawyer/employer who is not sure about compliance, can contact the
U.S. DOL through its confidential compliance hotline at 1-800297-8043.

Overtime or Compensable Time?

The most commonly (and unintentionally) violated provisions
of state and federal wage & hour laws is the failure of the employer
to properly calculate "compensable" time during the workweek,
which, in turn, has a significant impact on the employer's
overtime liability. Many lawyers pay their employees an hourly
rate. Employees are provided either a paid or unpaid lunch and
are required to record and report their "hours worked" for the
purposes of payroll. What often shows up on payroll, however, is
a "straight eight" workday for each day, instead of "actual hours
worked." Employees may work from home, before their start time,

"I am convinced that nothing we do is more important than hiring and developing people. At the end of the day, you bet on people not on strategies."
- Lawrence Bossidy, former AlliedSignal CEO

12 | Berks Barrister


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Berks County Bar Association The Berks Barrister Spring 2019

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