ZELASKO-BARRETT v. BRAYTON-PURCELL, LLP No. A130540.
198 Cal.App.4th 582 (2011)
MATTHEW ZELASKO-BARRETT, Plaintiff and Appellant, v. BRAYTON-PURCELL, LLP, Defendant and Respondent.
Court of Appeals of California, First District, Division Three.
August 17, 2011.
Arthur Chambers for Plaintiff and Appellant.
Littler Mendelson , Alan S. Levins , Kurt R. Bockes and Rachelle L. Wills for Defendant and Respondent.
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
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's 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 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 purposes 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 1(A)(3)(a) is sometimes described as the "enumerated professions" exemption and the exemption in subdivision 1(A)(3)(b) as the "learned professions" exemption. (Campbell v. PricewaterhouseCoopers, LLP (E.D.Cal. 2009) 602 F.Supp.2d 1163, 1172, revd. (9th Cir. 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.
For this contention, plaintiff has relied heavily on the decision of a federal district court in Campbell. That decision unquestionably provided colorable support for plaintiff's position. However, subsequent to the conclusion of briefing in this case the Ninth Circuit Court of Appeals reversed the district court decision. (Campbell, supra, 642 F.3d 820.) That case now provides compelling additional support for the trial court's decision in this case. We concur in the Ninth Circuit's analysis.
Campbell questions whether associates in an accounting firm's "attest division" come within the professional exemption in wage order No. 4-2001. "Attest associates" are unlicensed and assist certified public accountants in performing financial audits. The defendant accounting firm argued that "unlicensed employees who assist licensed accountants, may be exempt under subsection (b), the `learned professional' exemption. Plaintiffs argue that, inter alia, defendant's interpretation . . . renders subsection (a), the `enumerated professional' exemption, surplusage. Defendants reply that excluding the enumerated professions from the learned professions would, inter alia, contradict settled expectations about who may be exempt—for example, plaintiffs' reading would mean that new law firm associates awaiting their bar passage results were non-exempt employees." (Campbell v.
The Ninth Circuit found no ambiguity in the language of the wage order, nor do we. "The professional exemption's language is unambiguous. The exemption plainly allows accountants to fall under subsection (b), subject to meeting the specific requirements of that subsection." (Campbell, supra, 642 F.3d at p. 826.) As the court pointed out, the wage order states explicitly that a person employed in a professional capacity means any employee who meets all of the requirements of section 11040, subdivision 1(A)(3)(a) "or" of subdivision 1(A)(3)(b). Moreover, "the exemption frames its application in terms of individual employees, rather than whole professions. This undercuts Plaintiffs' argument that the IWC contemplated excluding the entire accounting profession from subsection (b)." (Campbell, at p. 826.)
As the district court itself pointed out, the learned professions exemption was first added to the wage order in 1989 (Cal. Code Regs., tit. 8, former § 11040(1)(A) (1989)) in response to concerns that emerging occupations were not recognized under the existing wage order. According to the IWC's explanation for the addition, "the IWC decided that the professional exemption relied too much on credentialism." (IWC Statement As To the Basis Upon Which Industrial Welfare Commission Order No. 4-89 is Predicated, Section 1, Applicability (1989).) As the district court acknowledged, "[t]he statement of basis demonstrates that one purpose of the learned professions provision is to expand the scope of the exemption beyond the enumerated professions." (Campbell v. PricewaterhouseCoopers, LLP, supra, 602 F.Supp.2d at pp. 1176-1177.)
The Ninth Circuit also rejected the district court's premise that including members of an enumerated profession within section 11040, subdivision 1(A)(3)(b) would render subdivision 1(A)(3)(a) superfluous. "[E]ven if the district court is correct that every licensed accountant under subsection (a) could also fall under subsection (b), subsection (a) still serves a distinct purpose. Namely, subsection (a) is much easier for an employer to prove. Subsection (a) precludes the factual disputes for which subsection (b) is a veritable hotbed—even in this case—about the employee's actual job duties and whether those duties meet the requirements of a `learned' or `artistic' profession. Under subsection (a), once the employer proves the employee is licensed in California and practices one of the eight enunciated professions, the inquiry is over. For that reason, subsection (a) is not superfluous even if every licensed accountant it covers could also fall under subsection (b). Though the two subsections may often end at the same place, subsection (a) is a much easier path." (Campbell, supra, 642 F.3d at p. 828.)
Plaintiff makes no argument disputing the sufficiency of the evidence Brayton submitted in support of the summary judgment motion to establish that plaintiff's responsibilities satisfied the requirements of section 11040, subdivision 1(A)(3)(b), (c), and (d). According to the declaration of a Brayton partner submitted in support of the motion, "An individual working in the position of `Law Clerk II' is treated like any junior attorney at Brayton. He or she is expected to utilize the analytical, research and writing skills acquired during their law school education to perform the job functions of the Law Clerk II position. Those job functions include, but are not limited to: (1) drafting pleadings; (2) propounding and managing discovery; (3) independently evaluating and responding to legal arguments raised by opposing counsel in the meet and confer process and/or oppositions to motions filed by Brayton; (4) conducting necessary legal research; (5) using discretion to tailor the facts of Brayton's cases to applicable legal standards and arguments; (6) exercising discretion and independent judgment to identify documents and arguments to be used in deposition and hearings; (7) speaking with opposing counsel, clients, heirs of clients and witnesses; and  supervising clerical staff to insure discovery documents are completed timely and properly." This evidence, accompanied by additional evidence to the same effect,
Plaintiff contends that contrary evidence included in the declaration he submitted in opposition to the summary judgment motion created a triable issue of material fact as to the applicability of the exemption. Although plaintiff does not explicitly identify the elements within section 11040 subdivision 1(A)(3)(b), or (c) that he contends his evidence disputes, he appears to argue that he has created factual issues as to whether his work was "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," as required by subdivision 1(A)(3)(b)(iii),
Plaintiff argues that the court erred in sustaining Brayton's objections to the portions of his declaration that support these contentions. However, the statements in plaintiff's declaration to which objections were sustained were conclusory and insufficient to create a triable issue of fact. Plaintiff opined, for example, that he "was not in a professional capacity," that he "did not perform exempt tasks during my employment as a Law Clerk II," that he "was not engaged in work covered by the professional exemption," and that he was "misclassified." Such conclusory statements, providing no specificity as to the work that plaintiff performed, do not create a triable issue sufficient to defeat a summary judgment motion. (Hoover Community Hotel Development Corp. v. Thomson (1985) 167 Cal.App.3d 1130, 1135-1137 [213 Cal.Rptr. 750]; Barry v Rodgers (1956) 141 Cal.App.2d 340, 342 [296 P.2d 898].)
Plaintiff calls our attention to an opinion letter issued by the Wage and Hour Division of the United States Department of Labor with respect to the regulations under the federal Fair Labor Standards Act of 1938 (FLSA; 29 U.S.C. § 201 et seq.). (U.S. Dept. of Labor, Opn. Letter No. FLSA2006-27 (July 24, 2006) accessed at <http://www.dol.gov/whd/opinion/FLSA/2006/2006_07_24_27_FLSA.htm> [as of Aug. 17, 2011], citing 29 U.S.C. § 213(a)(1) and 29 C.F.R. § 541.301 (2006).)
More persuasive is the decision of the California Labor Commissioner in the matter of Yarnykh v. Brayton Purcell LLP, No. 11-38365CT (Oct. 27, 2010), reaching the same conclusion as do we with respect to another law school graduate not yet admitted to the bar who was employed by Brayton in what appears to have been a position comparable to that filled by plaintiff. The Labor Commissioner concluded that the plaintiff in that case "had acquired knowledge of an advanced type in the field of Law and not of general routine manual labor. The evidence indicates Plaintiff exercised discretion and independent judgment in the preparation for Asbestos civil litigation. Therefore, Plaintiff is found to be an exempt employee and not entitled to overtime pay." (Id at pp. 4-5.) We do not invoke the doctrine of collateral estoppel here as plaintiff suggests, nor do we consider this opinion
The judgment is affirmed.
Siggins, J., and Jenkins, J., concurred.
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