Metropolitan News-Enterprise


Thursday, August 18, 2011


Page 1


Court Rules Law Clerk Qualified as Exempt Employee


By SHERRI M. OKAMOTO, Staff Writer


A Northern California attorney who sued his former firm for failing to pay him overtime wages and other benefits during his tenure as a law clerk, was properly classified as an exempt employee, the First District Court of Appeal ruled yesterday,

Div. Three concluded that Matthew Zelasko-Barrett, who now runs a solo practice in Petaluma, Calif., performed duties for Brayton-Purcell LLP before being admitted to the State Bar which brought him within a Labor Code exemption for persons engaged in a “learned profession.”

Zelasko-Barrett joined the 180-member firm, based in Novato, Calif., after graduating from Thomas Jefferson Law School in 2007. Until he passed the bar exam in 2009 and was promoted to the position of associate attorney, Zelasko-Barrett was classified by the firm as a “Law Clerk II.”

During this time, Zelasko-Barrett alleged that he performed tasks customarily performed by junior attorneys. He said he drafted unsigned pleadings and discovery demands and responses, did legal research and drafted memoranda of points and authorities and supporting declarations, interviewed witnesses, assisted in deposition preparation and interacted with opposing counsel concerning discovery issues, under the supervision of a lawyer.

Zelasko-Barrett contended that he was wrongfully denied overtime wages, waiting time penalties, and meal and rest breaks while he was working as a law clerk, but Marin Superior Court Judge Verna L. Adams disagreed and granted Brayton-Purcell’s motion for summary judgment on the ground that Zelasko-Barrett qualified as a “professional” employee under the Labor Code.

Labor Code Sec. 515(a) authorizes the California Industrial Wage Commission to establish exemptions from the overtime requirements for executive, administrative, and professional employees, “provided that the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.”

Pursuant to this authority, the IWC has promulgated wage order No. 4-2001, which defines the professional exemption as applicable to an employee who “is licensed or certified by the State of California and is primarily engaged in the practice of…law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting” or “[w]ho is primarily engaged in an occupation commonly recognized as a learned or artistic profession.”

The order provides that a “learned or artistic profession” involves the performance of work “requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work” and which “is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.”

In performing these duties, the employee must also “customarily and regularly exercise[] discretion and independent judgment,” under the terms of the wage order.

Zelasko-Barrett argued on appeal that he could not be properly deemed to have been employed in a law-related professional capacity unless he was licensed to practice law since the law is one of the enumerated professions in the wage order for which licensure is required.

Justice Stuart R. Pollak, in his decision for the appellate court, was not persuaded, and noted the Ninth U.S. Circuit Court of Appeals had recently rejected a similar argument in Campbell v. Pricewaterhouse Coopers, LLP (E.D.CA 2009) 602 F.Supp.2d 1163.

The Ninth Circuit reasoned that the enumerated professions and the so-called learned professions “often end at the same place,” with the only difference being that the enumerated professions provide “a much easier path,” since “once the employer proves the employee is licensed in California and practices one of the eight enunciated professions, the inquiry is over.”

Pollak said the Ninth Circuit’s interpretation of the wage order “as it applies to unlicensed accountants is fully applicable to law school graduates working in a law firm before becoming licensed to practice law.”

Since Zelasko-Barrett made no argument disputing the sufficiency of the evidence Brayton-Purcell submitted in support of the summary judgment motion to establish that his responsibilities satisfied the remaining requirements of the wage order, Pollak concluded summary judgment was properly granted.

Justices Peter J. Siggins and Martin J. Jenkins joined Pollak in his decision.

Zelasko-Barrett yesterday referred request for comment to his attorney, Arthur Chambers of San Francisco, who did not provide a response.

Alan S. Levins of Litler Mendelson, one of the attorneys who represented Brayton-Purcell said yesterday’s decision was “an excellent victory for Brayton-Purcell.”

He remarked that “as helpful as this decision will be to law firms, it will also be even more important for law school graduates waiting for bar exam results who now can be employed in meaningful work without employers being concerned about limiting their experience or their time on the job.”

Levins suggested that the case “did not resolve any novel legal issue” since the “law with regard to the learned profession was fairly well established, and someone who is using the knowledge and skills learned through a prolonged course of education, such as law school, is considered to be, and has for some time been considered to be a exempt employee.”

The case is Zelasko-Barrett v. Brayton-Purcell, LLP, A130540.


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