On December 16, 2005, the Wage and Hour Division of the Department of Labor issued an opinion letter concerning the exemption of paralegals from the FLSA. A portion of the opinion is below. You can read the full opinion at: http://www.dol.gov/esa/whd/opinion/FLSA/2005/2005_12_16_54_FLSA.htm

Based on the information you provide, it is our opinion that the paralegals you describe do not qualify as bona fide administrative employees under the final regulations at 29 C.F.R. § 541.200. You mention that past Wage and Hour Division opinion letters (August 17, 1979; September 27, 1979; June 12, 1984; April 13, 1995; and February 19, 1998) have taken the position that paralegals are nonexempt, and that often a deciding factor has been the level of judgment and discretion exercised by the paralegal and the amount of supervision the attorneys provide. It continues to be our opinion that the duties of paralegal employees do not involve the exercise of discretion and independent judgment of the type required by section 541.200(a)(3) of the final regulations, thus an analysis of whether their work is related to management or general business operations is not necessary. The outline of the duties of the paralegal employees you provide describes the use of skills rather than discretion and independent judgment. The paralegals typically are drafting particular documents to assist attorneys on a particular case or matter. The paralegals are not themselves formulating or implementing management policies, utilizing authority to waive or deviate from established policies, providing expert advice, or planning business objectives in accordance with the dictates of 29 C.F.R. § 541.202(b).

Thus, like the inspectors and investigators described as non-exempt in 29 C.F.R. § 541.203(j), the paralegal employees appear to fit more appropriately into that category of employees who apply particular skills and knowledge in preparing assignments. Employees who apply such skills and knowledge generally are not exercising independent judgment, even if they have some leeway in reaching a conclusion.

In addition, most jurisdictions have strict prohibitions against the unauthorized practice of law by laypersons. Under the American Bar Association's Code of Professional Responsibility, a delegation of legal tasks to a lay person is proper only if the lawyer maintains a direct relationship with the client, supervises the delegated work, and has complete professional responsibility for the work produced. The implication of such strictures is that the paralegal employees you describe would not have the amount of authority to exercise independent judgments with regard to legal matters necessary to bring them within the administrative exemption.