When is a "Partner" really just an "Employee?"
Among the most intellectually challenging and unresolved issues facing employment attorneys is the very basic question of whether a partner in a business can also be an employee. Over the last several years many law firms have been sued by "partners" for violating the Age Discrimination in Employment Act -- even though the plaintiff was a partner in the firm, i.e., the plaintiff is, at least theoretically, one of the owners of the business. Generally speaking, the owner of a business is not also an employee and cannot sue for employment discrimination. But the Equal Employment Opportunity Commission has alleged that major international law firms, including Sidley and Kelley Drye, have forced out older partners and that in doing so, they violated federal discrimination laws that protect older Americans.
Now one Florida appellate court has chimed in on the subject. Florida law provides that anyone who prevails against an employer in a lawsuit for unpaid wages is entitled to have the employer pay the plaintiff's attorneys' fees. (This is important because when it comes to ensuring the employees are paid their proper wages, it is vital the employee be "made whole."). But does Florida law include claims brought by a partner against the partnership for unpaid wages pursuant to an employment agreement? We now know the answer is "yes." In what the blog considers to be a case of first impression, Florida's Third District Court of Appeal concluded that Florida's statute mandating attorneys' fees to prevailing employees applies to a partner's claim for unpaid wages against the partnership.
It is unclear whether the rule in BDO Seidman LLP v. Bee will be followed by other Florida courts or whether it is an outlier whose ruling is limited. Questions about your status as a "partner" in a law or accounting firm? Don't hesitate to contact an employment attorney before your question becomes a lawsuit.
