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Unlicensed Law School Graduate Not an Exempt Employee

Friday, August 26, 2011

Rebecca L. Tsai | Bloomberg Law Zelasko-Barrett v. Brayton-Purcell, LLP, No. A130540, 2011 BL 216885 (Cal. Ct. App. Aug. 17, 2011) Matthew Zelasko-Barrett brought a lawsuit against his former employer, the law firm of Brayton-Purcell, LLP, alleging that he was wrongfully denied overtime wages, waiting time penalties, and meal and rest breaks under state labor law. California's Labor Code generally requires that employers pay overtime compensation, but wage order No. 4-2001 provides two categories of employees who are exempt from this general rule. Subsection (3)(a) exempts employees who are "licensed or certified by the State of California and [are] primarily engaged in the practice of . . . law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting." Subsection (3)(b) exempts employees who are "primarily engaged in an occupation commonly recognized as a learned or artistic profession." According to Zelasko-Barrett, during the time that he served as a law clerk at the firm, he was not a professional employee and therefore did not fall within the class of executive, administrative, and professional employees who were exempt from the overtime compensation requirements. The trial court held, however, that Zelasko-Barrett was an exempt employee under the "learned professions" exemption. The California Court of Appeal focused its analysis on Campbell v. Pricewaterhouse Coopers, LLP, 642 F.3d 820 (9th Cir. 2011), which the U.S. Court of Appeals for the Ninth Circuit decided after briefing in the instant appeal was complete. At issue in Campbell was whether an accounting firm's "attest associates," unlicensed employees who assist certified public accountants in conducting audits, were properly denied overtime compensation under the learned professions exemption. The plaintiff argued that such a classification would essentially render the "enumerated professional" exemption of subsection (3)(a) superfluous. The Ninth Circuit held that the wage order "plainly allows accountants to fall under [the learned professions exemption], subject to meeting the specific requirements of that subsection," even though accountants are also listed among the exempt professions of subsection (a). It reasoned that the wage order exempts "any employee who meets all of the requirements of subsection (a) 'or' of subsection (b)," and that inclusion in one category does not prevent the other category from applying as well. Agreeing with the Ninth Circuit's analysis, the California Court of Appeal held that a law clerk who has graduated from law school but is not yet licensed to practice law is similarly exempt from overtime compensation under the learned professions exemption. Accordingly, the Court affirmed the trial court's decision.

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