People without salaries are reluctant to report their salaries

While going over the new employment and salary figures posted by Chicago and Ohio State I had one of those insights about something which seems incredibly obvious once one has noticed it, which makes it all the more vexing that I hadn’t noticed it previously.

It’s this: a huge percentage of recent law graduates who are being surveyed regarding their salaries don’t actually have salaries.

A salary is the whole sum someone is paid in return for work performed. A key mark of professional status is that one is paid a salary, rather than hourly, or by piece rate. (The category is over-inclusive in that some non-professional workers receive salaries, but the key point is that “real” professional positions feature salaries rather than hourly compensation. This distinction has various legal consequences, most notably that salaried employees don’t have to paid overtime).

Because lawyers are professionals, they have salaries. That’s why NALP, the ABA, and USNWR ask for salary information, and publish mean and median salary ranges for attorneys nine months after graduation. Except, increasingly, lawyers don’t have salaries. Very large numbers of new lawyers (and indeed a vast and growing army of veteran attorneys) are paid by the hour, working temporary contracts as law clerks, document reviewers, and other positions that do not feature, among many other things, a salary.

Once one has realized this it helps explain the otherwise somewhat puzzling fact that such a large proportion of recent law grads are sufficiently compliant in regard to their alma mater’s requests for information that they’re willing to respond to employment surveys, but nevertheless apparently aren’t willing to disclose their salaries. For instance Ohio State determined the employment status nine months after graduation of 100% of its 2010 class, but has salary information for just 45% of the class, or 51% of employed graduates. Of course some people with salaries will refuse to disclose them, but the most obvious explanation for why so many recent law graduates refuse to disclose their salaries is that they don’t have salaries.

Conversely some non-salaried grads will multiply their hourly wage by 2000 and report an annual “salary,” especially given that the current reporting system doesn’t distinguish between salaried and non-salaried work for the purpose of reporting compensation. It would be a good thing if every law school were required to report what percentage of its most recent graduating class it had been able to determine held positions as salaried attorneys. Non-salaried and non-attorney positions would be excluded explicitly from the questions designed to elicit this percentage. (Among other things such a requirement would spur career services offices to find as much information as possible about their graduates. Of course this incentive would make it all the more imperative to audit the reported percentages).

Consider OSU’s salary information, which according to their career placement office “is self-reported by graduates.” Fourteen 2010 OSU graduates obtained jobs with firms of more than 500 attorneys, and apparently all 14 reported their salaries. Meanwhile, only six of 23 graduates working for firms of 2-10 attorneys reported their salaries. A plausible explanation for this enormous variance in reporting rates is that in a large proportion of these cases these graduates are law clerks or contract attorneys, being paid by the hour. In other words, they don’t have salaries to report.

And although in the case of Chicago we’re looking at a very small cohort, it’s striking that the school doesn’t have “salary” information for about the same number of its graduates who report working for firms of ten lawyers or less. Consider that for the class of 2009 NALP has salary data for slightly more than a third of graduates working for firms of that size, which suggests strongly that large numbers of recent graduates working for small firms simply don’t have salaries to report.

Indeed legal employers of all types, faced with a sea of desperate recent and not-so-recent law graduates, are increasingly willing to fill positions that formerly would have been filled by, on the one hand, law students, or, on the other, salaried attorneys, with a new class of non-salaried hourly workers who have law degrees. The former positions are law clerk jobs, that traditionally haven’t required those who fill them to be admitted to the bar, while the latter are jobs that used to be filled by salaried lawyers but can now be filled by people who, because they can be paid relatively low hourly wages and do not need to be provided benefits, are much cheaper to hire than salaried attorneys. (There is an even more dire subcategory of recent graduates who are working literally for free. The US Attorney’s office in Denver recently advertised a year-long position for a new law graduate, with a “salary” of zero).

In other words, in addition to all the other problems that plague the fight for transparency regarding law school employment and “salary” data, the language we continue to use out of habit is increasingly out of date. If you ask people who don’t have salaries about their salaries, it’s not surprising that you will end up with a poor response rate.