Employment Law – Law clerk exempt from overtime pay because he was classified as a professional employee

Matthew Zelasko-Barrett sued a Northern California law firm, Brayton-Purcell LLP, for not paying him overtime for his work for them as a law clerk after he graduated from law school and before he passed the bar exam.  The California Court of Appeals recently ruled Zelasko-Barrett was not entitled to overtime pay because he was considered to be a professional employee (click here for the Google Scholar version of the ruling).

Here’s a quick explainer on being eligible for overtime pay in California: employees are generally eligible for overtime pay unless they are exempt.  Exempt employees are those who are deemed to be executive, administrative, or professional employees.

A professional employee is one who is licensed or certified in certain named professions (including law, medicine, teaching, and accounting) OR one who primarily works in a learned or artistic profession.  A learned profession means the job requires advanced knowledge of a field or science that usually requires prolonged study, and the work is intellectual and is not standardized in nature.  A professional employee must also exercise discretion and independent judgment in performing the job duties and earn at least 2 times the minimum wage for full-time employment.

Zelasko-Barrett had not passed the bar yet, so he was not licensed or certified as a lawyer at that time.  Zelasko-Barrett’s job duties as a law clerk included drafting pleadings, preparing and managing discovery, legal research, exercising discretion and judgment to choose the documents and arguments to be used in depositions and hearings, speaking with opposing counsel, clients, and witnesses, and supervising clerical staff.  Zelasko-Barrett had a supervising attorney and he was not able to sign any pleadings or appear in court because he had not yet passed the bar exam.

Based on the above, the court found Zelasko-Barrett’s job duties required a “significant level of discretion” in the actions taken by him, even if Zelasko-Barrett’s recommendations were not always used by his supervising attorney in the final version of his work.  Therefore, the court ruled Zelasko-Barrett met the requirements to be considered an exempt professional employee and was exempt from overtime pay.

It is important to remember this court’s ruling was based on Zelasko-Barrett’s specific job duties.  Another law clerk with more menial duties could still be entitled to overtime pay.

For more on this story, see this San Francisco Chronicle article, and for more information on the rules of overtime pay in California, see this from the California Department of Industrial Relations.  Zelasko-Barrett has passed the bar exam and is apparently now self-employed in San Francisco.

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