Law Grads Working As Clerks in California Are Exempt, Not Entitled To Overtime

As recent law graduates consider ways to ingratiate themselves to prospective employers, consider the case (literally) of Matthew Zelasko-Barrett, a former law clerk at the law firm of Brayton-Purcell, LLP.  Zelasko-Barrett worked at the firm for two years before he took and passed the bar.  He was designated an associate attorney with the firm when he passed.  Hooray, got a paying job, right?  Well, no.  He sued the firm for not paying him overtime when he was a clerk.  He lost at trial based on the Court’s reading of California Industrial Welfare Commission wage order No. 4-2001 which exempts employees in the “learned professions,” one of which includes the legal profession.  Zelasko-Barrett appealed.

The California Appellate Court’s opinion included this:

For this contention, plaintiff has relied heavily on the decision of a federal district court in Campbell. That decision unquestionably provided colorable support for plaintiff‘s position. However, subsequent to the conclusion of briefing in this case the Ninth Circuit Court of Appeals reversed the district court decision. (Campbell, supra, 642 F.3d 820.) That case now provides compelling additional support for the trial court‘s decision in this case. We concur in the Ninth Circuit‘s analysis.

Remember to Shepardize, kids (or KeyCite if you prefer), even after you think you are done.  And while you are at it, check out the administrative labor decisions as well:

More persuasive is the decision of the California Labor Commissioner in the matter of Yarnykh v. Brayton Purcell LLP, No. 11-38365CT (Oct. 27, 2010), reaching the same conclusion as do we with respect to another law school graduate not yet admitted to the bar who was employed by Brayton in what appears to have been a position comparable to that filled by plaintiff.  The Labor Commissioner concluded that the plaintiff in that case had acquired knowledge of an advanced type in the field of Law and not of general routine manual labor.  The evidence indicates Plaintiff exercised discretion and independent judgment in the preparation for Asbestos civil litigation.  Therefore, Plaintiff is found to be an exempt employee and not entitled to overtime pay. (Id. at pp. 4-5.)  We do not invoke the doctrine of collateral estoppel here as plaintiff suggests, nor do we consider this opinion to control our decision, but we do consider the Labor Commissioner‘s reasoning to support the conclusion we have reached, namely that all of the evidence shows plaintiff to be an exempt employee.  (Cf. Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805, 815.)  Summary judgment therefore was properly granted to Brayton.

The full opinion is here.  [MG]