We’ve historically paid people for their work from nine to five. I’m sure this is a carryover from factory work during the Industrial Revolution. We probably have Henry Ford to thank for that. Actually, we probably have unions to thank for it because prior to unions people worked much longer shifts. Unions brought about a limitation in hours worked. (Please note, I am clearly not an expert in historical labor rules or development)

In any case, we got onto this system where we all are expected to put in eight hours of work during a workday. I have been reminiscing on this fact over the last week or so because, like many people working from home, I have not been putting in my eight hours, at least not in the traditional sense. There are lots of reasons for this: kids, wife, lunch, etc. I’m sure I’m not the only one.

I’m still working, for sure, but my billable hours have been reduced. But that’s sort of my point, who determined that what is billable is work?

And that made me think about the nature of our work and whether eight hours really made sense. Most of us who have been working from home would be considered knowledge workers. Who determined that knowledge occurs in eight-hour increments?

I joke, and many of my colleagues have agreed, that we’re working a lot of more than eight hours a day because it’s hard to turn it off. This was true before COVID, as well. I think about cases all the time. It’s sort of automatic background noise in my brain. I’m not billing for the time (if only), but the work is still happening.

Further, I read new updates about laws related to coronavirus, and I’ve been researching the ways that our businesses are likely to change over the next few months. I don’t technically get paid for that work, but if a client calls and says, “Can I track my employees with a cellphone app?” I can reply that, why yes, you can. I get paid for that 5-minute phone call, a far cry from the actual work that went into my knowledge and ability to answer the question.

Of course, this is how it’s always been. I attended law school and have amassed large amounts of experience, which none of my current clients technically pay for. However, my hourly rate reflects that knowledge and experience. That is why it has increased over the years.

But with the shift in our economy towards work-from-home, it really highlights the disparity between what we get paid for and the actual work we do. The actual work being the knowledge gathering and experience, and what we get paid for being literal time spent dealing with an issue.

Why do we have that separation?

You pay me for knowledge and experience, not my time. In fact, I’d get paid much more if I was dumb. I could bill for research and figuring out answers. But because I know the answer off the top of my head, I can only bill 0.1 hours or whatever. So why make the time the increment of pay?

We probably do it because we have always done it that way. But times are changing.

How can a family attorney get paid when they aren’t making court appearances, which was a primary billing method? I have colleagues that have reported that their billing has been reduced to 1/5 of the original billing because of a lack of court appearances. But are they really paid to appear in court? Is that really where they add value?

Certainly, it is one way they add value. They give you a voice in court, which is no small feat. But it’s not like they are paid solely for the three minutes they appear in front of the judge. Should your divorce cost 1/5 of what it used to simply because courts are closed?

Maybe, but it doesn’t seem fair to discount the attorney’s work simply because the nature of it has changed. Their knowledge and understanding of the material haven’t changed just because we are wearing masks and staying at home. In the case of a family attorney, assets still have to be divided and the needs of children still have to be met. These issues are taken just as seriously as when the courts were regularly open.

Why aren’t they paid consistent with their knowledge and experience?

That is the disconnect that I can’t figure out.

Don’t get me wrong, the billable hour was invented by lawyers to overbill their clients so in some way we had this coming. But a general reduction of hours worked should not necessarily trigger a lower value for attorneys.

What do we do about it? What will clients tolerate?

Should we go to flat-rate billing or figure out a way to bill for base knowledge that every lawyer has accumulated over their career? Like a bill that includes a base price for knowledge plus an additional billable hour cost.

What if, for example, I billed $2,000 per month just for my base experience and then an additional $300/hour? The hourly would be pretty low right now because I’m not attending court. But it’s not as if I’m not working. It’s just hard to quantify the work.

There are no clear answers here. I suspect that other knowledge workers will have similar issues in the coming months. Consider accountants, IT professionals, and engineers. Are these people really paid to punch a clock for eight hours a day?

Work-from-home has changed the way knowledge work is done, and we will continue to see changes over the next year. We have to rethink what we compensate people for. It’s not merely for their time.

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