In September 2012, in Kadden v. VisuaLex, LLC, No. 11 Civ. 4892, 2012 WL 4354781 (S.D.N.Y. Sept. 24, 2012), the U.S. District Court for the Southern District of New York (Scheindlin, J.), after a three-day bench trial, held that the plaintiff individual, a litigation graphics consultant (“graphics consultant”) who held a law degree, was not exempt from the overtime pay requirements of the Fair Labor Standards Act (the “FLSA”) or of the New York Labor Law (the “NYLL”). Thus, the Kadden Court found that the defendant litigation support company, which had employed the plaintiff graphics consultant, had been required to pay, to the plaintiff, overtime pay at 1½ times the regular rate of pay for all hours worked in excess of 40 hours in a workweek.
More specifically, the U.S. District Court for the Southern District of New York held in Kadden that the plaintiff graphics consultant did not fall within the creative professional exemption, the learned professional exemption, the administrative employee exemption, or any combination exemption from the FLSA’s and the NYLL’s overtime compensation requirements.
The FLSA’s creative professional exemption renders exempt, from overtime pay and the minimum wage, any employee who (i) is compensated on a salary basis at a rate of not less than $455 per week and (ii) “[w]hose primary duty is the performance of work . . . [r]equiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.” 29 C.F.R. § 541.300(a), (a)(1), (a)(2), (a)(2)(ii); see 29 U.S.C. 213(a)(11).
Similarly, the NYLL’s creative professional exemption renders exempt, from overtime compensation and the minimum wage, any individual (i) “whose primary duty consists of the performance of work . . . original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination or talent of the employee,” and (ii) “whose work requires the consistent exercise of discretion and judgment in its performance.” 12 N.Y.C.R.R. § 142-2.14 (c)(4)(iii), (c)(4)(iii)(a), (c)(4)(iii)(b).
The Kadden Court found that the job of a litigation graphics consultant is “to convey information about a case in an informative, easily understandable way, to triers of fact.” The Southern District of New York found that “No evidence suggests that [the plaintiff]’s job required her to originate stories from scratch, or produce complex analyses of or transform the facts she was given.” Thus, concluded the Kadden Court, “none of [the plaintiff’s] duties fall within the creative professional exemption.”
Take-Aways For Employers
Plainly, in light of the Kadden case, any companies in New York which provide graphics to law firms in connection with trials, and which to date have classified their graphics consultant employees as overtime-exempt, must reconsider those classifications.
Further, in light of Kadden, companies in New York (in industries such as specialized design services, publishing, advertising, and public relations) which employ graphic designers, and which to date have classified them as overtime-exempt, must rethink those classifications. This is the case because the job duties of graphic designers significantly resemble the duties of graphics consultants. See Bureau of Labor Statistics, U.S. Dep’t of Labor, Occupational Outlook Handbook, http://www.bls.gov/ooh/arts-and-design/graphic-designers.htm (“Graphic designers create visual concepts, by hand or using computer software, to communicate ideas that inspire, inform, or captivate consumers.”).
Call the Law Offices of David S. Rich, LLC at (212) 209-3972 to speak with a knowledgeable labor and employment lawyer about ensuring that your company complies with overtime pay and other wage and hour laws, or to retain a skilled overtime attorney to defend your company in unpaid overtime lawsuits or other wage and hour litigation.