Employment Law Legal Topics New Legal Developments Practice of Law

Legal Limbo: Law Grad Not Yet a Licensed Attorney, but Denied Overtime

It’s legal limbo for law grads: They are not yet licensed to practice law (with all the benefits that come with that), but they are saddled with exempt status for purposes of overtime pay. At least that’s what the First District Court of Appeal has recently held.
In Zelasko-Barrett v Brayton-Purcell, LLP (Aug. 17, 2011, A130540), the court of appeal found that a law grad who was not yet a licensed attorney nonetheless performed duties that brought him within an exemption for those engaged in a “learned profession.” 
The learned professional exemption applies only if (29 CFR §541.301(a)):
  1. The employee is compensated on a salary basis at a rate not less than $455 per week, and
  2. The employee’s primary duty is the performance of work requiring advanced knowledge in a field of science or learning, which is customarily acquired by a prolonged course of specialized intellectual instruction.

The second element has been recognized to include the profession of law (29 CFR 541.301(c)), but until the Zelasko-Barrett court weighed in it wasn’t clear that it encompassed unlicensed law school graduates.

The court was unmoved by the law grad’s explanations that he was supervised by a lawyer and didn’t sign his name to documents, because he exercised “a significant level of discretion” in his work, which was mainly intellectual rather than routine clerical tasks. The court noted that the learned professions exemption is conditioned on an advanced course of education, not licensure.
Wondering if you or your law grad employee would fit under this exemption? Consider what exactly the law grad is doing on a day-to-day basis. The law grad’s duties in Zelasko-Barrett included:
  • drafting pleadings,
  • propounding and managing discovery, 
  • identifying documents and arguments to be used in deposition and hearings,
  • evaluating and responding to legal arguments raised by opposing counsel,
  • speaking with opposing counsel, clients, and witnesses; and
  • supervising clerical staff as to discovery documents.
If a law grad is doing these types of tasks, he or she may very well be exempt from the all-important overtime pay.
For everything you need to know about wage and hour law, including exemptions from minimum wage and overtime requirements, turn to CEB’s award-winning book California Wage and Hour: Law and Litigation, chap 7.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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