Superior Court of Marin, No. CIV-095856, Verna L. Adams, Judge.
The opinion of the court was delivered by: Pollak, Acting P. J.
CERTIFIED FOR PUBLICATION
(Marin County Super. Ct. No. CIV-095856)
Plaintiff Matthew Zelasko-Barrett, a former law clerk at the law firm of defendant Brayton-Purcell, LLP, appeals from an adverse summary judgment on his claim for failure to pay him overtime wages and provide other benefits allegedly required by California law. He alleges that the law firm incorrectly classified him as employed in a professional capacity, exempting the firm from the obligation to pay him overtime wages and provide other benefits. We agree with the trial court that although plaintiff had not yet been licensed to practice law in California, he was nonetheless a law school graduate and performed duties that brought him within an exemption for those engaged in a learned profession. His claim for additional wages and benefits therefore was properly rejected.
Brayton-Purcell, LLP (Brayton) is a law firm with approximately 180 employees headquartered in Novato. The firm primarily represents individuals seeking damages for personal injuries caused by exposure to defective or harmful products such as asbestos, tobacco, mold, and defective medical drugs. Following plaintiff's graduation from law school and before passing the bar examination, between August 2007 and June 2009, plaintiff was employed by Brayton in a position classified by the firm as a Law Clerk II. (The firm employed and classified a law student who had not yet graduated from law school as a Law Clerk I.) His status during this time period is in question in this action. Upon his admittance to the bar, plaintiff was designated as an associate attorney in the firm; he raises no questions concerning the salary and benefits he received in that status.
During the period that plaintiff was employed in the Law Clerk II position, he performed tasks customarily performed by junior attorneys. Although he was supervised by a licensed attorney and did not sign his name to pleadings, he drafted 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. In granting Brayton's motion for summary judgment, the trial court sustained objections to numerous statements in plaintiff's opposing declaration denying that he was employed in a professional capacity and performed work covered by the professional exemption.
Following his voluntary departure from the law firm, plaintiff filed this action asserting numerous causes of action based on the premise that as a Law Clerk II he had been misclassified as an employee to whom the provisions of California Industrial Welfare Commission wage order No. 4-2001 were inapplicable. The various causes of action allege, among other things, that he was wrongfully denied overtime wages, waiting time penalties, and meal and rest breaks. Following discovery, Brayton successfully moved for summary judgment on the ground that in the Law Clerk II position plaintiff had been an "exempt professional employee." Plaintiff has timely appealed.
The Labor Code, which imposes overtime compensation and other requirements on employers (e.g., Lab. Code, §§ 510, 512) authorizes the California Industrial Wage Commission (IWC) 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." (Lab. Code, § 515, subd. (a).) The IWC has promulgated wage order No. 4-2001, applicable to all persons employed in professional, technical, clerical, mechanical, and similar occupations. (Cal. Code Regs. tit. 8, § 11040.)*fn1 The wage order specifies that its provisions governing minimum wages, overtimes wages, and other employment conditions do not apply to employees falling within exemptions for persons employed in administrative, executive, or professional capacities, as defined in the wage order.
The wage order defines the professional exemption, as relevant here, as applicable to an employee: "(3)(a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or [¶] (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purpose of this subsection, 'learned or artistic profession' means an employee who is primarily engaged in the performance of: [¶] (i) 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; or [¶] (ii) . . . ; and (iii) Whose work 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." (§ 11040, subd. (1)(A)(3).) The exemption provided in subdivision (a) is sometimes described as the "enumerated professions" exemption and the exemption in subdivision (b) as the "learned professions" exemption. (Campbell v. Pricewaterhouse Coopers, LLP (E.D.CA 2009) 602 F.Supp.2d 1163, 1172, revd. (2011) 642 F. 3d 820 (Campbell).) To come within either, the employee must also be one: "(c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraphs (a) and (b). [¶] (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week." (§ 11040, subd. (1)(A)(3).) Section 11040, subdivision (1)(A)(3) also provides: "(e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order: 29 C.F.R. Sections 541.207, 541.301 (a)-(d), 541.302, 541.306, 541.307, 541.308, and 541.310."
The trial court held that the undisputed facts establish that as a Law Clerk II in the Brayton firm, plaintiff was an exempt employee under section 11040, subdivision (1)(A)(3)(b), the so-called learned professions exemption.*fn2 Plaintiff's principal argument in challenging this ruling is that because law is one of the enumerated professions in section 11040, subdivision (1)(A)(3)(a), for which licensure is required, he cannot be deemed to have been employed in a law-related professional capacity unless he was licensed to practice law. He argues: "Brayton took advantage of the exemption for an employee who was not so licensed by trying to skirt a fine line between claiming unlicensed practice of law and the exemption. In this instance, the Labor Board has spoken: if you have a license, you are exempt. If you don't have a license, you are not exempt, at least in that particular area." Because "the clear ...