Law Clerk Claims Not to be a "Professional," Loses Appeal

Thanks to the recent decision in Zelasko-Barrett v. Brayton-Purcell, LLP, California employers may now be able to lean a little more on the “learned professional” exemption when facing an employee’s claim that he or she should have been treated as “non-exempt” for payroll purposes.

Prior to Zelasko-Barrett, it was unclear whether  the”learned professional” exemption of California Wage Order 4-2001, section (1)(A)(3) required exempt workers to be licensed in order to be considered exempt.  With this decision, however, courts are free in certain situations to find that an employee is exempt even where the employee is unlicensed.  

In Zelasko-Barrett, the Plaintiff worked as a law clerk for two years for the Defendant law firm after graduating from law school.  During this time the Plaintiff performed similar duties as those performed by junior attorneys.  After Plaintiff passed the California Bar, the law firm promoted him to “associate attorney,” with his duties remaining essentially unchanged.  A few months later, Plaintiff resigned and filed a lawsuit claiming the law firm owed him overtime, missed meal and rest period penalties, waiting time penalties, and penalties for insufficient wage statements.

The law firm moved for summary judging relying on the “learned professional” exemption of California Wage Order 4-2001, section (1)(A)(3)(b).  The trial court and the appellate court both agreed with the law firm that an employee’s job duties may satisfy either section (1)(A)(3)(a) (specific professions that are exempt) or section (1)(A)(3)(b) (the learned professional) of the professional exemption.  The appellate court pointed out that in 1989 the Industrial Wage Commission intended to expand the scope of the learned professional exemption when promulgating CWO 4-2001, and that, therefore, subsection (b) was not superfluous when read with subsection (a) insofar as subsection (a) is simply easier for an employer to prove than subsection (b).  Accordingly, since Plaintiff was performing the duties of a learned professional, he was subject to the “learned professional” exemption even though he was unlicensed.

This decision, however, should not be taken as a “license” for employers to employ non-licensed individuals for work that should ordinarily be performed by licensed individuals merely to take advantage of the presumed exempt status of the employees.  Such a strategy could open up other cans of worms with third party clients suing for professional malpractice, negligent misrepresentation, or fraud were non-licensed employees performed work that should be performed by licensed individuals.  Nonetheless, Zelasko-Barrett is another arrow in a Defendant’s quiver to avoid liability and should be used whenever appropriate.