California Court Finds Professional Overtime Exemption Applies To Law Clerks

In Zelasko-Barrett v. Brayton Purcell, LLP, No. A130540 (Aug. 17, 2011), California's First District Court of Appeal affirmed the trial court's order granting summary judgment in favor of the employer, Brayton Purcell. The appellate court held that California's professional overtime exemption applied to the plaintiff during the period of time he was employed as a law clerk at Brayton Purcell and had not yet passed the California Bar Examination. Littler represented Brayton Purcell at the trial and appellate levels.

Background

The plaintiff worked as a law clerk at Brayton Purcell after graduating from law school. During this time, he performed work similar to the work performed by any junior attorney, including drafting pleadings, preparing discovery demands and responses, conducting legal research, drafting legal memoranda, drafting memoranda of points and authorities and supporting declarations, interviewing witnesses, and assisting in deposition and hearing preparation. Because the plaintiff was not yet licensed as an attorney, the plaintiff did not sign his name to pleadings and his work was supervised by a licensed attorney.

Unfortunately, the plaintiff struggled to pass the Bar Examination and did not successfully pass the Bar until approximately two years after he started working at the firm. When the plaintiff finally passed the Bar, Brayton Purcell immediately promoted him to the position of associate attorney. The plaintiff voluntarily resigned from Brayton Purcell a few months after his promotion. He filed a lawsuit against Brayton Purcell shortly thereafter alleging that, for the period of time he was employed as a law clerk, Brayton Purcell owed him overtime, missed meal and rest period penalties, waiting time penalties, and penalties for insufficient wage statements.

After discovery, Brayton Purcell moved for summary judgment on all of the plaintiff's claims and argued that the plaintiff's claims should be dismissed because he was exempt as defined under the "learned professional" exemption in California Wage Order 4-2001, section (1)(A)(3)(b). The plaintiff opposed Brayton's motion, and principally relied on a recent federal district court decision, Campbell v. PricewaterhouseCoopers, LLP.1 In Campbell, the federal district court held that, as a matter of law, unlicensed "attest associates," who performed accounting functions, could not qualify under California's professional exemption because they were not licensed...