Unlicensed Law School Graduate Still May Be Exempt Under Learned Professions Exemption

Harvey A. Nell, Clerk and Recorder, Anaconda, MT

Image by Butte-Silver Bow Public Library via Flickr

The First District Court of Appeal held that summary judgment was properly granted in a wage and hour case because plaintiff unlicensed law school graduate performed duties that brought him within the exemption for learned professionals.  Zelasko-Barrett v. Brayton-Purcell, LLP, — Cal.Rptr.3d —-, 2011 WL 3594015, No. A130540 (1st Dist. Aug. 17, 2011) .


Plaintiff was employed by the Brayton-Purcell, LLP (Brayton) law firm as a Law Clerk II after he graduated from law school but before he passed the bar examination. Id. *1. After being admitted to the bar, plaintiff was designated as an associate attorney, and performed tasks customarily performed by junior attorneys. Id. He drafted pleadings, discover demands and responses, did legal research and drafted memoranda of points and authorities, interviewed witnesses, etc. Id. The trial court granted Brayton’s motion for summary judgment and sustained objections to numerous statements where plaintiff denied he was employed in a professional capacity and performed work covered by the professional exemption. Id.

Plaintiff filed an action after voluntarily departing from the law firm, and alleged that he had been misclassified.  Brayton successfully moved for summary judgment on the ground that in the Law Clerk II position plaintiff had been an “exempt professional employee.” Id. Plaintiff appealed. Id.

Two Distinct Professional Exemptions

Under Section 3(a) of IWC Wage Order 4-2001, the professional exemption applies when an employee is licensed or certified in California and primarily engaged in the practice of law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting. Id. This is generally considered the “enumerated professions” exemption. Id.Additionally, the professional exemption applies, pursuant to Section 3(b), to employees who are primarily engaged in an occupation recognized as a learned or artistic profession, defined as work requiring advanced knowledge customarily acquired by a prolonged course of specialized intellectual instruction and study or that is predominantly intellectual and varied in character. Id. The output of the work cannot be standardized in relation to a given period of time. This is sometimes described as the “learned professions” exemptions. Id. Both professional exemptions require that the employee customarily and regularly exercise discretion or independent judgment and who earns a monthly salary that is no less than twice the state minimum wage for full-time employment. Id.


The trial court held that plaintiff was an exempt employee under the learned professions exemption.  Id. *3.  Plaintiff argued that because the law requires licensure, he could not be considered an exempt employee unless he was licensed to practice law. Id. The Ninth Circuit addressed this issue in Campbell v. Pricewaterhouse Coopers, LLP, 602 F.Supp.2d 1163, 1172, revd. (2011) 642 F.3d 820 (E.D. Cal. 2009), which held that unlicensed accountants can fall under the learned professions exemption. Id. The Ninth Circuit noted that the learned professions exemption was added to the wage order because the enumerated professions exemption relied too much on credentials. Id.

The Ninth Circuit in Campbell rejected plaintiff’s argument that allowing unlicensed accountants to fit within Subsection (b) would render Subsection (a) “surplusage”.  The Campbell Court reasoned that the two sections had distinct purposes, because subsection (a) is much easier for an employer to prove.  Id. *4.

The First District agreed with the reasoning of the Ninth Circuit:

Consistent with the decision of the Ninth Circuit, we conclude that the professional exemption applies to a law school graduate performing legal services but not yet licensed to practice law if all of the conditions of subsections (b), (c), and (d) of section 11040, subdivision (1)(A)(3) are satisfied.

Judges and Attorneys

Acting Presiding Justice Stuart R. Pollak wrote the opinion for the court.  Justices Peter J. Siggins and Martin J. Jenkins concurred.

Arthur Chambers for Plaintiff and Appellant.

Littler Mendelson, Alan S. Levins, Kurt R. Bockes, Rachelle L. Wills for Defendant and Respondent.


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